1 October 2007
The Honourable Robert Douglas Nicholson
Minister of Justice and Attorney General of Canada
284 Wellington Street
Ottawa, Ontario, K1A 0H8
Dear Minister,
I am writing on behalf of the Canadian Council for Refugees to ask you to halt all legal action against Janet Hinshaw-Thomas, who was charged on 27 September 2007 under section 117 of the Immigration and Refugee Protection Act. We are shocked that this provision of the Act, which is designed to combat people-smuggling, has been used against a person acting on humanitarian motives to assist a group of individuals to exercise their right to seek asylum. The charges laid contravene not only international human rights protections, but also the spirit of the Canadian law, which as its name suggests, is intended to protect refugees.
At the time that the Immigration and Refugee Protection Act was being debated a number of organizations, including our own and the UNHCR, raised concerns about the breadth of section 117, and the risk that it might be used against persons acting on humanitarian motives to protect refugees. These concerns were echoed by Members of Parliament during the clause by clause study of the bill and at that time government officials assured parliamentarians that the provision requiring consent of the Attorney General was sufficient protection against section 117 being used against persons acting for humanitarian reasons. A copy of the relevant part of the transcript is enclosed.
We urge you to adopt a clear policy, in line with the explanation given by officials before the parliamentary committee, directing that no charges are to be laid under section 117 of the Immigration and Refugee Protection Act against persons acting for humanitarian reasons.
Yours sincerely,
Elizabeth McWeeny
President
cc. Hon. Diane Finley, Minister of Citizenship and Immigration
http://cmte.parl.gc.ca/cmte/CommitteePublication.aspx?SourceId=54916
STANDING COMMITTEE ON CITIZENSHIP AND IMMIGRATION
COMITÉ PERMANENT DE LA CITOYENNETÉ ET DE L'IMMIGRATION
EVIDENCE
[Recorded by Electronic Apparatus]
Thursday, May 17, 2001
On clause 117—Organizing entry into Canada)
The Chair: This is the enforcement section. I think we have G-45, G-46, and G-47—three government amendments. Can you take us through these government amendments, Steve or Joan?
Ms. Joan Atkinson: I'm going to ask Daniel to take us through these amendments because these relate to the offences relating to human smuggling and trafficking, and we have a series of amendments that add greater clarity to these sanctions, to these offences. This has been based very much, I would say, Mr. Chairman, on our experience with boat arrivals and so on, dealing with prosecution of some of the individuals who were involved with the smuggling and trafficking of the Chinese migrants.
So we're making some clarification—
The Chair: How about the representations we heard from legitimate cruise shipowners and people who say they're just trying to help on a humanitarian basis? We're not going to throw those people in jail, are we?
Ms. Joan Atkinson: No.
The Chair: Do any of the amendments clarify all of those, or am I reading something...?
Ms. Joan Atkinson: It's already there.
The Chair: Take us through ours anyway. They're G-45, G-46, and G-47.
Mr. Daniel Therrien: G-45 is intended to ensure the rules that are in the current act, which say that people who assist others in illegally smuggling people to Canada are committing an offence.... With the wording of the bill as introduced, it was only people who helped in the organization and not people who helped in the smuggling itself who are subject to a crime. This is inconsistent with the current act, and we feel the current act should be carried over.
The Chair: In other words, we're strengthening this.
Ms. Joan Atkinson: Yes.
The Chair: It will allow for the strengthening. Can you tell us what G-46 is all about, before I put them to a vote?
Mr. Daniel Therrien: G-46 is technical. It deals with language changes.
The Chair: And G-47?
Mr. Daniel Therrien: It is also technical. It's to clarify that it's crimes subject to indictment that are covered, which is already in the French version.
G-48 is a bit more substantive, but it's a different clause.
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The Chair: What's G-48? Oh, that's clause 119, okay.
Before I put G-45 to a vote, I have McCallum.
Mr. John McCallum: I guess this is coming up in the NDP amendment anyway, but since we're on subclause 117(1), we heard a fair amount of testimony in our hearings from people doing humanitarian work, reverends and saintly people, if you will, and the last people in the world we would want to prosecute. Yet, if you read that literally, it looks like some of these people who are helping refugees could be prosecuted. Or if my sister is in a bad country and I help her, it looks like I can be prosecuted. How does that work?
Mr. Daniel Therrien: The protection against such prosecutions is in subclause 117(4), which provides that no prosecution under the smuggling provision can occur without the consent of the Attorney General, who, obviously, in deciding whether to prosecute, will weigh the motives of the people who have assisted others to come illegally into Canada. This is, again, what the current act provides, and there are relatively few prosecutions on smuggling, certainly no complaints I've heard that under the current regime, which would be repeated in the new regime, people who acted on humanitarian grounds have been prosecuted for smuggling.
The Chair: NDP-51n deals with this one. Go ahead, Judy.
Ms. Judy Wasylycia-Leis: We heard from many groups a concern about being charged and penalized for helping refugees coming into Canada at the border, and I hear the officials saying that protections are provided in subclause 117(4) and that there are virtually no prosecutions as a result of someone acting for humanitarian reasons.
Mr. Daniel Therrien: There are none, actually, that I know of.
Ms. Judy Wasylycia-Leis: Okay, none. My argument would be that if such is the case and there still is this concern from groups, the way the act is now worded, you actually constrain them, make them think twice about helping people because of this provision. They do not want to end up where they're charged and have to go to the Attorney General of Canada to have their case dealt with humanely. Why not put it in the act? Why not add something to subclause 117(1) that actually says it doesn't apply to someone acting on humanitarian considerations. I would still move that.
Ms. Joan Atkinson: If I could speak to that, these offences on smuggling and trafficking are key elements of our contribution to the international fight to try to put an end to the smuggling and trafficking of human beings. We need to be able to have very strong offences, and I know everyone is very well aware of how we have highlighted these as being a part of the tools we need to deal with these issues of smuggling and trafficking.
It doesn't imply that you have to go and make a case or get consent. Subclause 117(4) is what's in the current act. No proceedings under these offences can be undertaken without the consent of the Attorney General. That is the protection. It is in place with the offences we have relating to the smuggling of individuals in the current act, and as Daniel has said, there has been no prosecution of anyone who was involved in trying to help refugees come to Canada. That is the safeguard. All the circumstances will be reviewed by the Attorney General to put in humanitarian considerations without defining what that means. It means you don't have the flexibility you need for the Attorney General to be able to consider all the individual circumstances in a case before any decision is taken to prosecute.
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The point I think we're making here is that these offences, as they are worded, are extremely important for our objectives here in being able to deal with this international problem of smuggling and trafficking.
The Chair: Okay. G-45.
(Amendment agreed to—[See Minutes of Proceedings])
The Chair: G-46.
(Amendment agreed to—[See Minutes of Proceedings])
The Chair: G-47.
(Amendment agreed to—[See Minutes of Proceedings])
The Chair: NDP-51n.
(Amendment negatived—[See Minutes of Proceedings])
(Clause 117 as amended agreed to)
