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Rights of refugees threatened by anti-smuggling legislation: critics

Bill C-49 would jail asylum-seekers for 12 months without judicial review

by David Koch


Ottawa - The federal government's proposed law against human smuggling would violate the rights of refugees under international law and the Canadian Charter of Rights and Freedoms, according to critics.

Under Bill C-49, asylum-seekers arriving in Canada with the help of a smuggler would face a mandatory one-year jail sentence, without any chance to challenge their detention in court, law professor Peter Showler told reporters on Tuesday.

He said this violates several sections of the Charter, including section nine, which guarantees the right not to be arbitrarily detained and arrested.

"If you're arrested as a criminal, within 24 hours it's required that a judge or a magistrate reviews that detention decision," he said.

"Nobody is simply left in prison for an unlimited period of time, and certainly not for a year."

Alex Neve, the Secretary General of Amnesty International Canada, told reporters on Tuesday that Bill C-49 would infringe on rights protected by the International Covenant on Civil and Political Rights, of which Canada is a signatory.

"Those are blatant, egregious violations of the right not to be subject to arbitrary arrest and detention, and the right to be able to promptly challenge the grounds for detention," Neve said.

Immigration Minister Jason Kenney said on CTV's Question Period last month that the bill complies with the Charter and international law.

"We always knew that certain special-interest groups and the immigration industry would be opposed to this," he said.

"Quite frankly, that indicates to me that we're on the right track."

The proposed law was prompted by the arrival of an overcrowded ship of asylum-seekers on the west coast in August. The MV Sun Sea carried nearly 500 Tamil asylum-seekers to Canada.

After three months at sea, they were detained by immigration officials.

About 15 of the 49 children who arrived on the Sun Sea in August remain in "effective detention" at a Burnaby jail, according to Gary Anandasangaree, a lawyer with the Canada Tamil Congress.

He explained that the children are allowed to leave detention as wards of the state, but that would mean separation from family members who remain in custody.

Since C-49 is retroactive, he said those who arrived on the Sun Sea would remain in detention for another year if the bill passes.

"This is not the kind of legislation that we want, that would retroactively jail and continue to hold children in detention without any kind of scrutiny," he said. 

The arrest of the Tamil asylum-seekers has already sparked outrage among advocates of refugees.

Fathima Cader, a member of the Vancouver branch of No One Is Illegal, said that protesters hold a weekly demonstration at the Burnaby jail where the children are being held. The protesters can sometimes see them from outside.

"Occasionally the guards let them come to the window to see the people who are demonstrating, so they can wave," she said.

Kenny defended the continued detention of the migrants last month, saying that some might be linked to terrorism.

"A large number of people are still being detained because we have not been able to identity them or because we have reasonable grounds to believe .... they may be inadmissible because of ties to terrorism and national security concerns," Kenney said.

Cader said that Kenney's policies are channeling xenophobic, anti-immigrant sentiments.

"This is coming from a deep-seated fear of racialized bodies," she said.


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