Migrant Smuggling: Canada's Response to a Global Criminal Enterprise: With an Assessment of the Preventing Human Smugglers from Abusing Canada's Immigration System Act (Bill C-4)

Migrant smuggling is a dangerous, sometimes deadly, criminal activity which cannot be rationalized, justified, or excused. From both a supply and demand side, failing to respond effectively to migrant smuggling and deter it will risk emboldening those who engage in this illicit enterprise, which generates proceeds for organized crime and criminal networks, funds terrorism and facilitates clandestine terrorist travel; endangers the lives and safety of smuggled migrants, undermines border security, with consequences for the Canada/U.S. border, and undermines the integrity and fairness of Canada’s mmigration system. Introduced in Parliament in June, 2011, the Preventing Human Smugglers from Abusing Canada’s Immigration System Act (Bill C-4) includes amendments to the Immigration and Refugee Protection Act (IRPA) that would: 1. Enhance the existing offence of migrant smuggling, in terms of the elements of the offence, the penalties available, and recognized aggravating factors; 2. Modify the general provisions of the IRPA to provide for detention of foreign nationals on arrival in Canada on grounds of serious criminality, criminality, or organized criminality; and 3. Create a separate legislative scheme for groups of smuggled migrants who arrive in Canada that relates to detention, release, and timing to apply for various forms of immigration status. This paper supports Bill C-4, but with two necessary amendments, namely: 1. Initial review of detention of designated foreign nationals should take place within 48 hours of detention, with further reviews every three or six months thereafter, in order to comply with binding Supreme Court of Canada jurisprudence; and 2. An exemption for designated foreign nationals who are minors (persons under 18 years of age) from the detention provisions of Bill C-4, which would instead subject them to the general rules related to detention of foreign nationals who are minors. These changes would provide Bill C-4 with a more balanced response to migrant smuggling. Bill C-4 is just part of the overall action being taken by the Government of Canada to address migrant smuggling. A comprehensive approach to addressing migrant smuggling ultimately requires three primary strategies pursued together at the national and international levels: 1. National jurisdictions must take greater action to discourage illegal migration and disrupt migrant smuggling operations through legislation like Bill C-4 and through international cooperation; 2. National jurisdictions must establish more efficient refugee-determination processes and expedient procedures to remove failed claimants; and, 3. As part of the solution, the international community should continue to develop a proactive response to the global refugee situation.

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