Bill C-4: anti-human smuggling or anti-refugee?

Immigration Minister Jason Kenney says there are there are "legal and legitimate ways that must be followed” to claim refugee status. Photo by Tavis Ford (Wikimedia Commons)

On August 13, 2010, a ship full of Tamil migrants arrived on the shores of British Columbia. There were 492 people on board, including 49 children, all seeking asylum after enduring a desperate, four-month voyage on a cramped, unsanitary ship. Even before the boat arrived, the Conservative government labeled occupants as “criminals” and “terrorists.” The ship was a “significant security concern,” and the government called in both the immigration minister and the public safety minister. This was the beginning of an aggressive campaign to rally support for harsh new anti-refugee legislation—a propaganda campaign built on disinformation, misleading rhetoric, disregard for the legal system, and some hefty stoking of public fear and misperceptions.

The migrants pleaded in an open letter that they had come to Canada “to protect ourselves and our family members from the murders, disappearances and violence that still exist in our native country.” To the Conservatives, however, the Tamils were “fraudsters” and “bogus claimants” who were “jumping the queue” and not “playing by the rules.” They weren’t just criminals but “criminals who target Canadian generosity,” “abuse our fair and welcoming immigration system,” “take advantage of our generosity,” and “seek to devalue Canadian citizenship.”

At the time, Liberal MP Marc Garneau was compelled to scold the government, suggesting that they “lower the tone” of their increasingly inflammatory rhetoric. It didn’t work. The propaganda campaign continued, with much success. An Angus Reid poll a week later found that 48% of Canadians thought the Tamils should be deported, even if they were found to have no links to terrorism.

With public opinion in their favour, the Conservatives wasted no time in introducing Bill C-49 on October 21, 2010. Eight months later, after re-election, the Conservatives reintroduced the bill as  C-4—the so-called anti-human smuggling bill. It was promptly opposed by all opposition parties, along with hundreds of community, legal, and human rights organizations. During its second reading in September and October of 2011, dozens of opposition Liberal, NDP and Green MPs spoke against the bill, voicing dozens of concerns.

The NDP’s Rathika Sitsabaiesan, who has close ties to the Tamil refugee community and is Canada’s first Tamil MP, found the bill personally offensive. So did the NDP’s Anne Minh-Thu Quach, herself the daughter of Vietnamese boat people. Many other MPs, who had no personal qualms with the bill, also spoke out. Public Safety Minister Vic Toews, whose own refugee parents and grandparents fled to Canada by boat, remained obstinate.

For an anti-human smuggling bill, Bill C-4 doesn’t spend much time dealing with smugglers (one clause imposes mandatory minimum sentencing for a human smuggling offence, already punishable by up to life imprisonment). Instead, the bill is aimed directly at refugees, and is—quite explicitly—designed as a deterrent to keep them away. At its core, Bill C-4 grants discretionary powers to the public safety minister to declare an arrival of two or more asylum seekers suspected of using a smuggler an “irregular arrival.” Once designated, asylum seekers are placed in mandatory detention for a minimum of one year, without review.

Mandatory detention without review is the point on which Bill C-4 will likely be fought in the courts. Detention without review is by definition arbitrary detention—a serious violation of international law and the Canadian Charter. After a year of detention, accepted claimants are prevented from applying for permanent residency for a period of five years (unlike their “legal entry” counterparts, who may do so without delay). During this period of legal limbo, they are stripped of several rights.

For instance, designated refugees are prevented from sponsoring close family members (spouses and children) during the five-year period—in violation of both domestic and international law, which guarantee family reunification. Bill C-4 also denies refugees the right to a Refugee Travel Document (in violation of international law), making it impossible to reconnect with family members. What’s more, Bill C-4 cuts the current already-basic health plan available to refugees and, by way of the five-year period, extends it far beyond the temporary use it was designed for.

“We are confident that this complies with the Charter and our domestic and international legal obligations,” assured Immigration Minister Jason Kenney in October 2010 when the bill was first introduced. And yet, Bill C-4 is rife with such violations. The irregular arrival designation, for example, creates two classes of refugees, violating the Charter’s guarantee of equality before the law. Detaining children disregards our commitments under the Convention on the Rights of the Child. The removal of the right to an appeal violates the UN’s Refugee Convention, which Canada signed in 1969.

Bill C-4 also allows the government to punish refugee claimants for their illegal entry (that is, for using smugglers). We are, however, obligated through the Refugee Convention to process their claims, regardless of the legality of their entry. Illegal means of escape are often the only means at their disposal—an exceptionally desperate position that we have no right to condemn.

Kenney would disagree. After announcing the bill he explained that “there are legal and legitimate ways that must be followed” to claim refugee status. Harper himself explained that that Tamils had arrived “not through any normal application process, not through any normal arrival channel.” What, then, is the normal arrival channel? What are the legal and legitimate ways?

There are two ways: One is to be selected overseas, either by the government (through the UN’s resettlement program) or by Canadian citizens or organizations (through the private sponsorship program). The other way is to flee directly to Canada and apply for refugee status at a Canadian port of entry. The first are referred to as overseas claims, and the second as inland claims.

In statement after statement, the Conservatives play up the legitimacy of the government resettlement program against the illegitimacy—and the insolence—of other claimants. This position is not just erroneous, but opportunistic, destructive, and hateful. At the very least it misrepresents the nature of our responsibilities toward refugees. It is inland claims, after all, to which international treaties apply. We have no obligations with regard to the resettlement program—it is simply a gesture of our good will.

Yet Minister Toews insists that “We will not tolerate the abuse of our immigration system … by those who are unwilling to play by the rules.” And Minister Kenney explains that, “while Canada is maintaining its humanitarian tradition of providing a safe haven for legitimate refugees, we will not stand by while our immigration system is being abused by queue jumpers.”

The belief that inland claims are illegitimate allows for accusations of queue jumping. But the fact is, when it comes to refugees there simply isn’t a queue. As soon as you file a claim, that claim is processed—that’s all there is to it. The popular misconception of the queue comes from the conflation of refugees and economic-class immigrants (those who simply would like to become a citizen). Immigrant applicants must wait their turn, and tend to have the time to do so. This is a luxury that refugees do not have—which of course is the whole point.

Canada deals with remarkably low numbers of refugees (0.2 percent of the world total) and has plenty of experience with refugee boats. The Tamils represent just two percent of the year’s total arrivals and roughly the same number that arrive at airports across the country over the course of any given week. In Canada there is no crisis, no “threat.”

Meanwhile, the world’s refugees remain under threat.

Canada is one of only 25 nations participating in the UNHCR’s resettlement program. Together, the nations accepted 80,000 refugees for resettlement in 2010. Of those, Canada accepted 7,000—about nine percent of all refugees admitted under the program. Most of the world’s 10.55 million refugees find asylum in the developing world, largely fleeing to Pakistan, Iran, Syria, and sub-Sahara Africa. During last year’s famine in the horn of Africa, the Dadaab refugee camp in Kenya alone held nearly 500,000 people (it was 410,000 over-capacity, with 1,400 new refugees arriving every day).

The situation for refugees is obviously desperate.

Rather than whipping up public hostility toward refugees, our government should be a model for upholding international obligations and commitments, and working to alleviate the conditions from which people are fleeing through foreign aid, peacekeeping, and diplomacy. We must help those who flee to do so safely. We should be creating and nurturing the support networks that will be here for them once they arrive: community organizations and programs for language training, education upgrading, and small-business grants to ease their integration. There is only so much that government bent on keeping refugees away can do. Global numbers are on the rise and we cannot shut our doors. Sooner or later we’ll have to face them—and best to do so graciously.

Correy Baldwin is a writer, editor, and poet living in Montreal. He is a regular contributor to Uppercase magazine.