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The Minister can designate as irregular the arrival of a group of persons. The minimum number in the group is not defined: presumably 2 or more. Persons designated are then subjected to all kinds of special rules (see below).
Reasons for designating:
(a) examinations (for establishing identity, determining inadmissibility + any investigations) cannot be conducted in a timely manner; or
(b) it is suspected that the people are being smuggled for profit, or a criminal organization or terrorist group is involved in the smuggling.
Concerns: Discriminatory – creates 2 classes of claimants, based on mode of arrival.
Possible violation of Charter equality rights (section 15). Also violation of Refugee Convention (section 31) which prohibits States from imposing penalties on refugees for illegal entry or presence.
Note – in (a) above there is no requirement that there be ANY allegation of smuggling. If the passengers of the SS St Louis arrived, they could be designated.
NEW RULES AFFECTING DESIGNATED CLAIMANTS
Designated claimants (including children) are mandatorily detained on arrival or on designation. There will be no review by the IRB of their detention for 12 months. Release is only possible in the following situations:
a) Person is found to be a refugee
b) IRB orders their release after 12 months. Even after 12 months, the IRB cannot release the person if the government says that the person’s identity has not been established.
c) Minister decides there are “exceptional circumstances”.
Concerns: Clear violation of Charter (Supreme Court already struck down mandatory detention without review in security certificate case). The measures provide for indefinite detention on the basis of identity, with no possibility of release until the Minister decides that identity is established. Arbitrary detention, in violation of Covenant on International Civil and Political Rights (among others).
Release from detention
Mandatory conditions set out in regulations will be imposed on all designated claimants released from detention.
Concerns: We don’t know what the conditions will be, but on principle mandatory conditions would be unfair, as they don’t take into account the individual case (and could be very burdensome).
A designated claimant who has been accepted as a refugee must report to an immigration officer as required by regulations, and answer all questions.
Decisions on claims by designated persons cannot be appealed to the Refugee Appeal Division.
Concerns: Discriminatory, and risks violating non-refoulement provision in Refugee Convention.
In C-11, the government tried unfairly to exclude nationals from designated countries from the appeal. Now they are trying again, this time with some people excluded from the appeal based on mode of arrival. There is not even any logic to denying such people an appeal.
5 year suspension of permanent residence
A designated claimant cannot apply for permanent residence for 5 years. The 5 years start on the date of their refugee or PRRA decision. If they didn’t make a refugee claim or PRRA application, the 5 years start on the date of designation. If the person fails to comply with the conditions or reporting requirements, the 5 years suspension can be extended to 6 years.
Concerns: This rule applies both to those accepted as refugees and to those refused (or who never make a claim).
For accepted refugees the worst consequence is that this rule delays reunification with spouse and children overseas for 5 years. This is a violation of the Convention on the Rights of the Child.
Non-refugees cannot, for example, be sponsored by a spouse, leading to violation of family unity rights.
Refugee travel document
Article 28 of the Convention, which says States must issue travel documents, does not apply to designated persons, until they become a permanent resident (or are issued a temporary resident permit). This means that designated refugees cannot travel outside Canada for at least 5 years after they have been accepted as a refugee.
Concerns: Violation of Refugee Convention. An offensive attempt to legislate away rights established by international treaty.
Bar on H&C applications for 5 years
Designated persons cannot make an H&C application (or apply for a temporary resident permit) for 5 years. As above, the 5 years can be extended to 6 years for non-compliance.
Concerns: This is simply a variation on the bar on H&C for claimants that the government tried to introduce through C-11. Violation of Convention on the Rights of the Child, since there will be no opportunity to consider the best interests of the child.
The Minister can make retroactive designations for arrivals in Canada since March 31, 2009 (i.e. the passengers of Ocean Lady and Sun Sea could be designated).
OTHER CHANGES TO THE REFUGEE SYSTEM
No appeal is allowed from a cessation or vacation decision.
Concerns: C-11 was passed just a few months ago, and is not even yet in force. This is not the time to be re-opening matters so recently decided by Parliament.
Breadth of definition of smuggling
The offence of human smuggling has been broadened. The new definition no longer requires proof that the accused knew that it was or might be against the law for the people being assisted to enter Canada.
Concerns: This expanded definition seems aimed at including people who have no objective intent to break the law, and potentially are acting from humanitarian motives to help refugees.
The current definition needs to be narrowed, not broadened, in order to clearly exclude people motivated only by a desire to help refugees find asylum. In 2007, smuggling charges were laid against a refugee worker from the US, Janet Hinshaw-Thomas. Although the charges were subsequently dropped, the law as it currently stands, and according to Bill C-4, makes it possible for people acting purely for humanitarian motives to be prosecuted.
The real problem in prosecuting exploitative smugglers is not something that can be fixed by changing the law. The persons who mastermind and profit from smuggling operations rarely, if ever, accompany the persons smuggled into Canada. The new measures do little to actually deter the ringleaders while making it very likely that the costs of doing business will rise – resulting in higher prices for genuine refugees and greater risks to their lives.
Mandatory minimum sentences
The bill will impose mandatory sentences for some categories of smugglers.
Concern: IRPA already contains the most serious penalties for convicted smugglers: life imprisonment and up to a $1 million dollar fine. If the prospect of tough penalties could deter human smuggling, it already would have. Indeed, there is no persuasive evidence that mandatory minimum sentences deter others.
Mandatory minimum sentencing has been criticized for well over fifty years by the Canadian Sentencing Commission, several other national organizations as well as social scientists. The literature notes the following: (i) mandatory minimum sentences cannot deter people from committing crimes because most people do not even know the existence of minimum sentences; (ii) potential offenders are deterred not by mandatory minimum sentences, but rather by the probability of detection; (iii) putting people in prison for longer periods of time may make them more likely to re-offend when they get out of prison as compared to punishing them some other way in the community; (iv) negative impacts of mandatory minimum penalties include unfairness and deepening systemic inequalities, including racism; (v) states such as Michigan and the Northern Territories of Australia are retreating from mandatory minimum sentencing as a result of their negative experience with its consequences; (vi) incarceration is costly – money spent keeping an inmate unnecessarily in prison means money that cannot be spent on more effective crime control strategies.
Judges are best positioned to tailor a sentence to fit the offender’s motive and individual circumstances.
21 June 2011