October 25, 2010

Bill C-49 – Continuous Journey Regulation- Borrowing from the Past?

Posted by admin - Bellissimo Law Group PC

The proposed passage of Bill C-49 has resulted in vociferous criticism by human rights organizations and various legal associations among others. But as in all things it is instructive to take a look back and one often discovers what is old is new again. In 1908 Wilfred Laurier’s Federal Government made an important amendment to the Immigration Act of 1906. The amendment was in response to then Deputy Minister of Labour Mackenzie King’s findings that an undesirable Oriental influx was attributable to high immigration from Hawaii. He recommended that Ottawa should severely limit the admission of Japanese newcomers as well as new settlers from India. As such in 1908 the “continuous journey regulation” came into effect and remained so until 1947 – thirty nine years later.

Pursuant to this regulation all intended immigrants to Canada were required to travel to Canada by continuous passage from their country of origin or citizenship on a through ticket purchased in the said country. Since no shipping company offered direct services from India to Canada or from Hawaii to Canada both Indian and Japanese immigration were essentially eliminated.

The regulation did not go unchallenged. The most notable challenge to the continuous journey regulation is known as the Komagata Maru incident on May 23rd, 1914 when 376 East Indians (including 22 landed immigrants of Canada) arrived in Vancouver in the Komagata Maru steamer. In the end after weeks of depriving the passengers of food and water and a test case before an Immigration Board of Enquiry all except the returning residents were redirected to India found in violation of the continuous journey regulation. Although exceptions over the thirty nine years were permitted the legislation is a significant blight on Canada’s immigration history.

In 2010 persons may be facing strict penalties if arriving by “irregular means” if Bill C-49 becomes law because of another boat that recently arrived on Canadian shores. Again there exists the potential of lengthy detention, unequal treatment and at its worse ultimately the possibility of returning individuals to death or torture. If immigration and refugee history has taught us one lesson, the law should never lose sight that it regulates the fragility of the human condition in many of its manifestations. Our history is riddled with painful examples where a desire to proactively deter some from arriving on our shores trounced human rights and led to death and torture of innocent people looking to Canada for help.

Although most will agree the Government’s attempt to significantly deter human trafficking is laudable and the task before them not enviable, we must not become lost in politics or temporary swings in public appeal. The Minister of Immigration Jason Kenney recently commented that the negative reaction of many in the “immigration industry” is evidence that his government is on the right track with Bill C-49. In short, a classic carrot and stick scenario believing many tracks leading to Canada are carrot patches with few sticks.

But we must tread cautiously with careful and thoughtful analysis in developing an effective and measured response to human trafficking to ensure the stick we swing and the track of redirection does not lead people in need to where they started.