Saturday, September 24, 2011

M.P. Matthew Kellway Speaks on Bill C4 Yesterday

Below is M.P. Matthew Kellway's speech on Bill C4 the Preventing Human Smugglers from Abusing Canada's Immigration System Act.

For more info on Bill C4 see:

To help stop Bill C4 see:

September 23rd, 1:45 p.m.
Preventing Human Smugglers from Abusing Canada's Immigration System Act
Mr. Speaker, as I listen to the debate in this House on Bill C-4, there are
some very obvious themes that are arising. One of the central themes that we
keep coming back to is the issue of fundamental human rights and freedoms. I
think that the Canadian public and we ourselves in this chamber can
reasonably expect some disagreements between members of different parties.
Sometimes those disagreements can be profound disagreements.

However, it saddens me that we disagree on these very issues of fundamental
human rights and freedoms. It seems to me that we in this chamber should not
have to be debating whether or not everything we do, every bill we consider,
should be based on, or consistent with, principles that human beings are
entitled to fundamental rights and freedoms. One would have thought, or at
least hoped, that we were past that.

We have, after all, a Charter of Rights and Freedoms that forms part of the
Constitution of this country. It recognizes, as I hope we all do, that
certain rights and freedoms are not conferred just by way of Canadian
citizenship but are universal. In the words of the charter, they belong to

Long before our charter, we were signatories to the charter of the United
Nations. As that charter says, we became signatories as a result of our

to save succeeding generations from the scourge of war [...], and

to reaffirm faith in fundamental human rights, in the dignity and worth of
the human person, in the equal rights of men and women and of nations large
and small, and

to establish conditions under which justice and respect for the obligations
arising from treaties and other sources of international law can be
maintained, and

to promote social progress and better standards of life in larger freedom.

What follows, of course, is our signature on a number of United Nations
conventions and declarations that are intended to put these beliefs into
practice. So profoundly certain are we of the legitimacy of such fundamental
human rights and freedoms that we are even prepared from time to time to
send Canadian men and women around the world and into war to protect people,
not just Canadians but people of all citizenship, who are denied such rights
and suffer as a result.

We all know there are many places around the world where people are denied
such rights and freedoms, and are subject to discrimination, persecution,
violence and even wrongful prosecution. From time to time, people end up on
our shores, seeking safe haven or asylum from more persecution,
understanding that this is a country known to the world as a place where one
can enjoy such rights and freedoms in peace.

One would hope that we respond to such people in a manner consistent with
our explicit commitments to respect fundamental rights and freedoms, the
most obvious of these commitments being our own charter of course but also,
most relevant to Bill C-4, the commitments we have made to the international
community about the appropriate treatment of refugees and, indeed, children.

However, Bill C-4 strays from those commitments, some of which have governed
or guided us for 60 years. I would like to point today to a few parts of
this bill where I think this is the case.

Bill C-4 places into the hands of the minister the power to create a second
or, in the terms of the bill, a designated class of refugee claimants. There
are very few criteria or parameters made explicit in the bill for making
such a designation, leaving very broad discretion to the minister and
therefore little accountability for the decision. This is of great
importance because of the profound implications of being placed into the
designated group. Mandatory detention follows such designation.

Section 7 of our charter says:

Everyone has the right to life, liberty and security of the person and the
right not to be deprived thereof except in accordance with the principles of
fundamental justice.

Which is to say, if we are going to deprive someone of life, liberty or
security, we better have a really good reason for doing so and a really
sound process for doing so, a reason and process that enjoys the consensus
of all Canadians.

The good reason and the sound process do not exist under Bill C-4. One of
the few explicit reasons the minister can invoke the designation is out of
suspicion that those claiming refugee status have already been victimized by
a smuggler.

Further, the detentions are group detentions, which is to say that the bill
does not require an assessment of the threat that any individual refugee
claimant may pose. Absent such an assessment, the detention of everybody
means, at a minimum, the arbitrary detention of somebody. Such arbitrary
detention raises the violation of section 9 of our charter; that is, the
right not to be arbitrarily detained or imprisoned.

The fact that there is no review of the detention for at least 12 months
raises further issues. Section 10 of the charter requires that everyone
arrested or detained has the right to: be informed promptly of the reasons
therefore; retain and instruct counsel and to be informed of that right; and
to have the validity of the detention determined within 48 hours and to be
released if the detention is not lawful.

To return to an earlier point, the detention for in fact seeking asylum, and
that we need to keep in mind just what triggers this detention, simply a
claim for refugee status, seems also to run afoul of the United Nations
Convention on the Status of Refugees, which says:

The Contracting States shall not impose penalties, on account of their
illegal entry or presence, on refugees who...present themselves without
delay to the authorities and show good cause for their illegal entry or

Article 31 of the refugee convention further states:

The Contracting States shall not apply to the movements of such refugees
restrictions other than those which are necessary--

Of course, as previously discussed, the designation process does not provide
for an assessment of necessary restrictions of movement for individuals as
the movement of everybody in the designated group is restricted simply as a
matter of being so designated.

Sadly, the denial of rights and freedoms to those in designated groups
extends beyond their recognition as a refugee by this country.

First, Bill C-4 would prevent designated refugees from applying for
temporary or permanent resident status for five years and further, prevents
them from obtaining refugee travel documents for five years. Again, this
would seem to breach the refugee convention to which we are a signatory,
which provides that the contracting states shall issue to refugees lawfully
staying in their territory travel documents for the purpose of travel
outside their territory unless compelling reasons of national security or
public order otherwise require.

Second, Bill C-4 would impose on refugees from a designated group a
continuing obligation to report to an officer to answer questions and
provide information or documents as so requested. This kind of surveillance
outside of the criminal justice system is unheard of in Canada. Further, it
must be remembered that this kind of surveillance under Bill C-4 flows from
the very arbitrary designation in the first place.

The sum total of the foregoing analysis of Bill C-4, albeit cursory and
partial as it is, goes to my final point.

Bill C-4, if we are to believe its title, is intended to counter human
smuggling. Throughout this entire debate I cannot recall any member of the
House making the claim that human smuggling is not a serious offence, that
it is not a practice that should be defeated, and that offenders should not
be subject to very serious punishment. Human smuggling is after all the
exploitation for profit and/or other nefarious advantage of people who are
most vulnerable, and in most need of protection.

The perversity of this legislation is that it heaps punishment on those very
same people that the human smugglers are exploiting. A further twist to that
perversity is that not only does the bill promise harsh treatment for those
seeking asylum in this country, a country where they come in the hopes of
being able to enjoy the rights and freedoms that they could not access at
home, but it proposes to deny these asylum seekers the very rights and
freedoms that define this country for ourselves and in the international
community, and make us so proud to be citizens of it.

Somebody gave the bill a very fine and aspirational title, and then things
went very seriously wrong. If it is the belief of the government that
provisions of the Immigration and Refugee Protection Act are insufficient to
deal with human smuggling, then I would urge the government to bring back
before the House a bill that punishes human smugglers, not those that they

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