'A field day for lawyers': Draft
includes stiffer penalties for smuggling aliens
A draft of the Liberal government's long-anticipated new
Immigration Act contains an expanded definition of refugees
that goes beyond the United Nations Convention on Refugees to
include a new category for "people in need of protection."
The new classification would vastly widen the notion of
asylum, opening up Canada's refugee system not only to those
who fear torture in their homeland, but to those who fear
becoming the "object of cruel and unusual treatment or
punishment."
An 89-page draft copy of the new legislation, dated March 1
and marked "secret," was obtained by Leon Benoit, the Reform
party's immigration critic.
He said yesterday that he believes the government's
proposed broadening of refugee protection goes too far.
"This legislation opens up the refugee concept to anyone,"
said Mr. Benoit, MP for Lakeland, Alta. "People who clearly
wouldn't meet the UN definition would now qualify. I think
this act is contrary to what Canadians want to see."
The current Immigration Act, which has been amended in
piecemeal fashion about 30 times since it was proclaimed in
1978, follows the definition set out in the UN Convention,
which states that a refugee must have a well-founded fear of
persecution for reasons of race, religion, nationality,
political opinion, or membership in a social group. In 1998,
25,000 people filed refugee claims.
Lawyers have long argued that as a signatory to the United
Nations Convention on Torture, Canada has an obligation to
protect citizens and non-citizens from torture.
However, a recent judgment from the Federal Court of Appeal
found that Canada's right to protect itself may on occasion
outweigh its obligation to keep some people, such as suspected
foreign terrorists, free from torture.
"The new act will make a field day for lawyers and there
will be more business to handle for years to come," said Mr.
Benoit, who added that a leaked parliamentary schedule
indicates the new Immigration Act will be introduced March 30
and be presented for second reading April 3.
The Liberal government has commissioned numerous advisory
panels and reports over the years that have scrutinized the
current Immigration Act and made hundreds of recommendations
in an attempt to streamline the legislation. Critics describe
the existing act as complex, convoluted and open to abuse. A
multi-party committee is also studying the controversial issue
of illegal migration, and is making recommendations to the
government.
"There is now cynicism around the committee's ability to
have any real input when the government has already written a
draft of the new legislation," said Mr. Benoit.
However, Derik Hodgson, press secretary for Elinor Caplan,
the Immigration Minister, said the new legislation has not yet
gone to cabinet and is still very much a work in progress. He
could not comment on the content of it nor on when it will be
introduced in the House, but noted an all-day meeting to
discuss the legislation is planned for today.
The draft copy obtained by Mr. Benoit includes stiffer
penalties for those involved in the smuggling of illegal
migrants into Canada. Those found guilty of smuggling 10 or
more people into Canada now face a maximum $1-million fine
and/or life imprisonment, as do those found guilty of
transporting illegals to Canada by sea. Under current
legislation, penalties for smuggling range from $5,000 to
$100,000 fines and prison terms of five to 10 years.
The changes may have been drafted to meet public concerns
about human smuggling, highlighted last summer when a fleet of
four smuggling ships with 600 Chinese people aboard arrived
off the coast of B.C.
William Bauer, a former ambassador and critic of the
immigration system, said the tough penalties sound good in
theory, but many criminals who organize smuggling routes do
not come to Canada, and those who are caught often get off
lightly.
"It sounds terrific to raise the fine to $1-million but no
judge has ever imposed more than a $5,000 fine," he said.
Mr. Benoit agrees, noting that from 1995 to 1998, only 14
smuggling charges were laid and the maximum fine imposed was
$4,000. He believes minimum fines would be a more effective
deterrent.
The draft of the new legislation does not address abuse of
the refugee system, said Martin Collacott, who worked for 20
years in the Foreign Affairs Department, serving as Canada's
ambassador to several countries. Countries in the European
Union, for example, are developing lists of countries from
which they will not accept refugees.
"The document does not address the problem with manifestly
unfounded claims," said Mr. Collacott. "The current system has
trouble dealing with volume because it is multi-layered and
has several levels of appeals."
The draft of the new act recommends adding another division
to the Immigration and Refugee Board to deal with the new
class of refugees. It also recommends that 10% of IRB members
should be lawyers. The document does not suggest eliminating
patronage appointments to the board -- a change recommended by
a government-commissioned 1998 report titled "Not Just
Numbers." The report made 172 recommendations, including a
proposal to disband the IRB and replace board members with
bureaucrats.
"We don't need people who will be caught up in legalese,
but people who will make sure the system works," said Mr.
Benoit. "I expected an act that would make the system work
better for independent immigrants and respond to problems in
the family re-unification system."
Mr. Hodgson, the minister's spokesman, said the document is
merely a "moving target" and will likely be subject to many
more revisions.