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CANADA: Anti-Smuggling Law Punishes Victims, Critics Charge

Fawzia Sheikh

TORONTO, Oct 18 2011 (IPS) - A former immigration officer and a refugee lawyer both agree on one issue regarding a controversial Canadian bill: The government’s plan to expedite anti-human smuggling legislation is unlikely to deter the flood of undocumented migrants to the country and instead bolsters Ottawa’s stature as tough on protecting national borders.

“The philosophy behind this legislation is if you make it horrible enough to come and claim refugee status in our country, then maybe people won’t come,” Lorne Waldman, a Canadian immigration and refugee lawyer based in Toronto, told IPS.

Last month, Waldman founded the Canadian Association of Refugee Lawyers with more than 150 like-minded legal professionals and academics. He serves as president. “But, unfortunately, the refugees that come are so desperate that, even if you punish them, they’ll still come, because that’s been the experience of other countries,” Waldman said.

Without a doubt, charged Ryerson University’s Arne Kislenko, Canada is “the easiest country in the world to get into”.

It is not uncommon for university students, equipped with about “five days of training and no real investment in the job”, to work as the “first line of defence” against potential criminals entering Toronto Pearson International Airport, said Kislenko, a Toronto-based history professor who writes about Southeast Asia and served for 12 years as an immigration officer at the airport. He previously trained new recruits.

“We don’t ask the right questions and we don’t have the right training,” he argued.

At press time, the Ministry of Immigration, Citizenship and Multiculturalism had not responded to questions regarding the training of immigration officers.

While Kislenko cannot attest to a recent increase in human smuggling activity, he believes Ottawa’s eagerness to push through the law is “consistent with a kind of politicking” in which majority governments often engage.

Prime Minister Stephen Harper’s Conservatives, which earned a majority vote in May, want to appear more aggressive on law enforcement and intelligence matters, he told IPS. “It’s a kind of softball issue for the government to handle, knowing that the Canadian public doesn’t really know much about it (and) doesn’t know the extent of things.”

In recent weeks, the federal government has been on the defensive to justify a crackdown on the Southeast Asian networks facilitating illegal migrants to Canada and aims to push through a new law by Christmas.

Such determination is rooted, in part, in the arrival of two illegal ships over the last few years carrying Tamils from Sri Lanka. As recently as July, Ottawa reported the interception by Indonesian authorities of yet another ship transporting Sri Lankan Tamils en route to Canada, but many of the nearly 90 migrants apparently wanted refuge in New Zealand, according to a Jul. 22 Globe and Mail report.

The contentious C-4 bill creates a “new offence” for people involved in mass human smuggling operations, raises penalties to one million dollars for boat owners, and institutes mandatory 10-year sentences for smugglers who “endanger the lives of passengers for profit”, stated Jason Kenney, the minister of immigration, citizenship and multiculturalism, in a Sep. 27 National Post op-ed.

The controversial measure of detention, which will last up to a year or until a refugee’s claim can be verified, is the “only reasonable and responsible approach” to human smuggling, Kenney said. The balanced approach is “less stringent” than the practice of detaining essentially all illegal migrants arriving in other Western nations like the United Kingdom, he stated, adding that Canada favours a refugee resettlement programme operating through the U.N. rather than illegal human smuggling operations.

Human smuggling is an extraordinarily lucrative business, potentially worth “hundreds of billions of dollars”, and includes highly diverse, top-end syndicates involved in everything from prostitution to forgery, Kislenko said. Surrounded by a team of typically deep- pocketed lawyers, he added, operators would view as expendable some syndicate members.

And, ultimately, most organisations facing the prospect of stiffer penalties would “take this on the chin”, he argued. “It’s pretty much chump change, to be honest.”

Waldman, the refugee lawyer, criticised the Canadian bill for contravening the Canadian Charter of Rights and Freedoms and international obligations. He took aim at C-4’s mandatory one-year detention for refugee claimants who enter Canada under the “irregular movement” designation (any group of two or more people who have paid a smuggler to transport them to Canada) or whose identity the immigration ministry believes it would be difficult to quickly ascertain.

Armed with such a “broad definition of irregular movement”, he argued, the government would detain the vast majority of claimants without any possibility of review.

Moreover, refugees would be barred from applying for permanent residence and obtaining travel documents for five years, which means they would be unable to apply for family reunification during that time, he noted.

Canada receives about 25,000 annual refugee claims but has an acceptance rate of roughly 40 percent to 50 percent, according to Waldman. Under the new law, Canada will force “genuine refugees” into detention and deny their rights, he said.

To a great extent, Ottawa’s proposal is modeled on the “failed policies” of other countries contending with asylum seekers, he told IPS.

“It’s completely counterproductive and at the same time it’s inhumane,” he argued.

As the federal government prepares to pass C-4 into law, it has emphasised the role of Ottawa’s cooperation with Southeast Asian countries to combat the flow of asylum seekers.

In Kislenko’s experience and research, he found Southeast Asian countries, with their “loosey-goosey” laws, to be conduits for the movement of people to Canada rather than source countries. Migrants travel on illegal documents obtained through criminal syndicates, which dispatch in-transit individuals to hotels and residences in certain countries until they arrive in Canada, he noted.

However, Thailand, a member of the nine-year-old Bali Process, an international forum to resolve human smuggling and trafficking, has “intensified the already existing good cooperation with the Canadian side” since the arrival of the MV Sun Sea vessel last year carrying Tamil migrants, according to a Thai government official. This collaboration includes Thai assurances that no vessels will be allowed to use its local waters as a transit route for illegal smuggling, the official told IPS.

The embassies of Cambodia and Indonesia did not respond to queries about the nature of their countries’ cooperation with Canada on anti- smuggling efforts.

While Ottawa has memoranda of understanding and even actual agreements with many countries regarding people smuggling, the problem is that it lacks extradition treaties with all of these states and information sharing with all policing authorities due to mistrust of undemocratic regimes, Kislenko noted.