10/04/2011 09:44 EDT | Updated 12/04/2011 05:12 EST

Canada's Misguided Crackdown on Human Smuggling

The Government of Canada is getting tough on refugees... Too tough.

A controversial bill reintroduced by the now-majority Conservatives seeks to undermine fundamental principles of due process, procedural fairness and the balance of powers in a misguided attempt to deter human smuggling.

The Preventing Human Smugglers from Abusing Canada's Immigration System Act (Bill C-4) does anything but what its title suggests. It is not about preventing human smuggling; it is about callously punishing those who may or may not have been smuggled in an attempt to gain a better life. It is about unchecked punitive measures against individuals who, by virtue of international law that Canada has signed on to, have every right to seek entry into this country.

Bill C-4 allows Vic Toews, Minister of Public Safety and Emergency Preparedness to deem "the irregular arrival" of a group of people entering Canada as a designated group of individuals. A group becomes designated for two reasons. The first is that the Minister "is of the opinion" that establishing the identities of group members "cannot be conducted in a timely manner." The second is if there are reasonable grounds to believe that the individuals have arrived in Canada via smuggling.

The result of designation is detention for a maximum of one year. An individual can be released from detention if, "in the Minister's opinion exceptional circumstances" exist. Exceptional circumstances is undefined.

And as if being detained isn't enough, should a designated individual in fact receive refugee status, he/she is prevented from applying for permanent residency for five years. This is an effective bar against family reunification for that period.

I wonder whether Canadians are comfortable knowing that the government can subject these women and men to detention for one year.

Furthermore, those who are currently detained upon arrival in Canada must have that detention reviewed within 48 hours, again within one week of the first review and subsequently once every 30 days. Increasing the waiting period for the first detention review from two days to 365 days is significant. Why the draconian extension? What about one or two weeks, or one month? What objective is achieved by detaining these people for one year?

And why, when the current system permits refugees to apply for permanent residency right away, must a refugee who was designated wait five years? What is so different about this refugee that we feel comfortable making him wait five years before he can be reunited with his family?

The only plausible answer to these questions is that our current efforts against human smugglers have been so unsuccessful that we are now going after the human cargo in an attempt to deter them from signing up in the first place. But punishing the smuggled to get at the smugglers is the wrong way to go about it.

In 1939 the Canadian government turned away the MS St. Louis and its 937 passengers seeking refuge from the Nazis, forcing the ship's captain to return to what would soon become Hitler's Europe. Prime Minister Harper has referred to this incident as "a stain on our nation's legacy" that "strengthens our commitment today to uphold human rights and to protect individuals fleeing persecution or displaced by conflicts."

Bill C-4 does not protect individuals fleeing persecution; it detains them. It does not strengthen our commitment to uphold human rights; it weakens it.

Human smuggling is a serious issue. It can lead to exploitation and dangerous consequences for smuggled persons. However, this bill does nothing to ameliorate the scourge of human smuggling. All it does is make us seem vindictive.

If the government proceeds to pass the bill, which it failed to do when it had a minority government, Minister Kenney will have a tough time defending his claim that Canada has "one of the most generous immigration systems in the world." For now, when it comes to "the irregular arrival of a group," there will be no system; there will only be him, the kingmaker.

Thus, given the multitude of rights at stake (see sections 7, 9 and 10 of the Canadian Charter of Rights and Freedoms), one can only hope that Minister Toews, an able and committed minister, will himself prove to be generous.