New Anti-Smuggling Act Challenges Canada's Commitment to Human Rights

The Federal Government’s proposed anti-human smuggling legislation raises troubling questions about Canada’s commitment to international human rights. Announced in the wake of the arrival of 492 Tamil asylum-seekers aboard the MV Sun Sea last August, Bill C-49 is a key piece in the Conservative Government’s new strategy to “crack down on human smugglers”. The reality, however, is that the legislation may do more to punish asylum-seekers and refugees than it does to curb human smuggling.

According to the Ministry of Public Safety, the proposed Act—known as the Preventing Human Smugglers from Abusing Canada's Immigration System Act— is necessary “to ensure the safety of our citizens and refugees.” The government intends to achieve these objectives by, among other things, imposing mandatory minimum sentences on human smugglers and restricting the rights of asylum-seekers if they arrive “irregularly” as part of any designated “human smuggling event.” Once designated an “irregular arrival”, asylum-seekers will not be allowed to apply for permanent residency for five years, will be processed differently than regular arrivals, and can face up to one year in detention.

While human smuggling raises a variety of concerns, the govern- ment’s response seems to have less to do with human smuggling than it does with fostering a “Law and Order” image. Before the MV Sun Sea arrived in August, the Government had all but decided that the passengers were LTTE terrorists (Tamil Tigers). With little now to substantiate the terrorist thesis, the government has shifted its rhetoric to the fight against migrants flouting what the Prime Minister has called the “normal application process.” However, rather than conceiving of this as a security or crime problem, the government should be examining the humanitarian conditions in Sri Lanka that are continuing to prompt people to flee.

The government’s approach in the proposed legislation does not square with the real causes of migration or with Canada’s international legal obligations. In the first place, the idea that there is a “normal application process” for asylum-seekers is largely a myth. Very often, the only way an asylum seeker can gain protection is by getting smuggled out of or into another country. This is done out of fear and desperation, not out of some desire to “jump the queue.” Canada also has a legal obligation to accept refugees who arrive illegally. Article 31(1) of the International Refugee Convention prohibits Contracting Parties, like Canada, from imposing “penalties, on account of [a refugee’s] illegal entry or presence.” This is because the framers of the Convention were well-aware that asylum seekers would often have no choice but to use any means, legal or not, to escape persecution. Bill C-49 clearly runs afoul of this prohibition and penalizes asylum-seekers who themselves are forced to rely on smugglers to stay alive. Human smuggling is indeed a problem, but the solution does not lie in punishing the people smuggled. The real solution lies in addressing the humanitarian conditions that have compelled people to risk their lives to come to Canada.