DETAINED AND TERRIFIED

Transcription

1 DETAINED AND TERRIFIED IMMIGRATION DETAINEES AND THEIR RIGHTS TO JUSTICE Each and every day of detention must be justified Canadian Bar Association Annual Immigration Law Conference Whistler, British Columbia, April 2009 Warren L. Creates, B.A., LL.B. Certified by the Law Society of Upper Canada as a Specialist in Citizenship and Immigration Law Perley- Robertson, Hill & McDougall LLP. Barristers, Solicitors, Notaries and Patent Agents Albert Street, Ottawa Ontario, Canada KIR 0A5 Tel: (613) Fax: (613) wcreates@perlaw.ca

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3 1. What is a Detention Review? In immigration matters, a person may be detained for an examination, an inquiry or for removal. However, preventative detention is an exceptional restraining measure in our society. The burden of proof to establish that continued detention is justified is always on the Canada Border Services Agency. Lay people (in which I include clients, their friends, relatives, and supporters), do not understand the term "Detention Review". Nor will they, or can we expect them to. They do, however, understand the term "Bail Hearing". There is, for our purposes, very little difference between the two proceedings. A "Bail Hearing" is the term used in the criminal courts and conducted pursuant to the Criminal Code, while a "Detention Review" is the term given the similar proceeding under the Immigration and Refugee Protection Act (IRPA). The most significant difference between the two proceedings is as follows: with bail hearings under the Criminal Code, a hearing is convoked by application ahead of time, allowing considerable time for the parties to prepare their case. Under the Criminal Code, a detainee also has the right to waive a bail hearing, which counsel will often advise until the case can be fully and properly prepared. Not so under IRPA, where a Member must review the reasons for the detention by the CBSA following a statutorily mandated time period(s). Under IRPA (A54(1)), the legislation itself mandates that a hearing, called a detention review, happen within 48 hours of the first arrest and detention (or, without delay, as soon as possible thereafter since it is often not possible to have the first review within 48 hours of the arrest). Ready or not, it will proceed, and the detainee cannot waive it. The Canada Border Services Agency, which conducts the investigation, issues the warrant, then performs the arrest and detention, is therefore often put at considerable advantage in regard to preparing for their case at hearing which will be within 48 hours of the detention. Indeed, they may have had weeks to prepare before the arrest and detention, whereas counsel and detainee only have hours. With the cards seemingly stacked against us, what do we do about it? A detention review is the proceeding to determine whether the detainee will have his/her detention continued, ended outright, or whether an "Offer to Release" will be made to the detainee, conditional upon the happening of some conditions, possibly now and/or possibly for the future. Be prepared for some rough justice. Cases often proceed on limited notice, sometimes in very difficult surroundings, and are based upon scant and unreliable evidence. The detainee's liberty and freedom has been severely denied, and a few strangers are being called upon to argue about whether the detention should be continued or ended with conditions. 1

4 2. Statutory Framework The Immigration and Refugee Protection Act, and its Regulations, together contain the legislative scheme that underpins detention reviews. A brief review of the more salient provisions is therefore instructive. (i) the Act: (a) Arrest and Detention With Warrant A55(1): officer may issue a warrant for the arrest and detention of a permanent resident or a foreign national believed to be inadmissible and believed to be: - a danger to the public; or - unlikely to appear for examination, an admissibility hearing, or a removal. (b) Arrest and Detention Without Warrant A55(2): officer may, without warrant, arrest and detain a foreign national believed to be: - inadmissible and a danger to the public; or - unlikely to appear for examination, an admissibility hearing, or a removal from Canada; or - unable to establish their identity. (c) Detention on Entry A55(3): a permanent resident or a foreign national may, on entry into Canada, be detained if the officer: - considers it necessary to do so for the examination to be completed; or - believes that the person is inadmissible on grounds of security or for violating human or international rights. (d) Notice A55(4): as soon as a person is taken into detention, an officer shall without delay give notice of the detention to the Immigration Division. 2

5 (e) Immigration Division A54: The Immigration Division is the competent Division of the Board with respect to the review of reasons for detention. (f) Release by Officer A56: Immigration officers have the authority to arrest and to detain. But they also have the jurisdiction to order the release of the detainee from detention before the first detention review is held by the Immigration Division, if it is believed that the reasons for the detention in the first place no longer exist. The officer may impose any conditions, including payment of a deposit or the posting of a bond, which the officer considers necessary. As a matter of practice, while this provision sounds hopeful that counsel might have the chance to be able to persuade an officer to order release before the first detention review is conducted, it is extremely unlikely that you will have time to amass enough compelling evidence that could be sent and reviewed by the officer within the 48 hours prior to the statutorily mandated hearing. (g) First Review of Detention A57(1): within 48 hours of the subject being taken into detention, or without delay afterward, the Immigration Division must review the reasons for the continued detention. This means that a Member of the Immigration Division will hear submissions from the Hearings Officer of the CBSA as to what the reasons were for the detention in the first place, and what reasons exist that the officer believes justifies continued detention. (h) Subsequent Reviews of Detention A57(2): if your client has not been released as a result of the first detention review (either because his continued detention was ordered or because he could not comply with an earlier offer for release), then there is a mandatory provision under the Act that his/her continued detention must be reviewed: - at least once within the next 7 days; and - at least once within each subsequent 30-day period. Any subsequent hearing is somewhat of a de novo hearing, however, the first document entered in such hearing often is a transcript of the reasons/decision of the Board Member of the earlier hearing or hearings. A detention review is not therefore precisely a trial de novo, because the Board Member is expected to take into account the evidence and the reasons pertaining to previous detention orders. But the Member must consider any new evidence, information or circumstances and must decide afresh at each hearing whether continued detention is warranted. The Member hearing each detention 3

6 review must come to a new (but not necessarily different) conclusion. As a result, counsel must know the case to meet, which means access to each of the earlier determinations and the evidence upon which they have been heard and decided. To win where all the preceding hearings have been lost requires considerable effort, and must necessarily also include new evidence, circumstances and explanations. Thanabalasingham, (2004) 9 January 2004 F.C.A, Stone, Rothstein, Sharlaw JJ.A.. "If a Member chooses to depart from prior decisions to detain, then clear and compelling reasons for doing so must be set out. The best way for the Member to provide clear and compelling reasons would be to expressly explain what has given rise to the changed opinion". "Sections 57 and 58 allow persons to be detained for potentially lengthy if not indefinite periods of time, without having been charged let alone having been convicted of any crime. As a result, detention decisions must be made with section 7 (right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice) of the Charter in mind. (i) Presence A57(3): the subject must be brought before the Immigration Division. This can be either in person at the Board s premises, in the jail or detention centre, by video conference, or simply by telephone conference. Much depends on in what region of Canada the detention occurs. (j) Release A58(1): The Immigration Division shall order the release unless it is satisfied, taking into account the prescribed factors (see Regulation 244 below) that: (a) They are a danger to the public; or (b) They are unlikely to appear for examination, an admissibility hearing, or removal from Canada; or (c) The Minister is suspicious that they are inadmissible on grounds of security or for violating human or international rights; or (d) The Minister believes that the person s identity has not been, but may be, established. 4

7 (k) Detention A58(1) and (2): Detention may be ordered if the Division is satisfied that the person is subject to an examination, to an admissibility hearing, or to a removal order, and further that the person is a danger to the public or is unlikely to appear for the examination, the hearing, or his removal. (l) Release Conditions A58(3): If the Division orders the release of the subject, it may impose any conditions that it considers necessary, including the payment of a deposit or the posting of a bond (which would ensure compliance with the conditions). (m) Minor Children A60: Detention only as a measure of last resort. (ii) The Regulations: Detention and Release FACTORS TO BE CONSIDERED: A. Flight Risk: R245 (a) fugitive from justice in a foreign jurisdiction; (b) compliance with any previous departure order; (c) compliance with any previous appearance required by immigration or criminal proceeding; (d) compliance with any previous conditions; (e) avoidance of examination, escape from custody, or attempt to do so; (f) association with smugglers or traffickers; and (g) whether or not strong community ties. B. Danger to the Public: R246 (a) Minister's opinion that a danger to the public; 5

8 (b) Minister's opinion that a danger to the security of Canada; (c) association with a criminal organization; (d) people smuggling or trafficking; (e) conviction in (or outside) Canada of a sexual offence; (f) conviction in (or outside) Canada of an offence involving violence; (g) conviction in (or outside) Canada of an offence involving weapons; (h) conviction in (or outside) Canada of drug trafficking; (i) conviction in (or outside) Canada of importing/exporting drugs; and (j) Conviction in (or outside) Canada of drug production. C. Identity not Established: R247(1) (a) the subject's co-operation in providing evidence/information of their identity, their parent's identity, their itinerary, their previous application for a travel document; (b) the destruction of identity or travel documents, or the use of fraudulent documents, in order to mislead the Department; and (c) the provision of contradictory information or documents. N.B.: The burden of proof is on the CBSA to establish that they have made reasonable efforts to establish the identity of the subject, taking into consideration the collaboration (or not) of the subject. The Board Member does not have to be satisfied of the person s identity. If the CBSA has demonstrated reasonable efforts, then the detention will likely be maintained, without the possibility of alternatives to detention, including a bond. D. Other Factors to be Considered in all Cases: R248 If the Division determines that there are sufficient grounds to justify continued detention, the following factors shall (i.e. must) be considered before a decision is made to order either detention or release: (a) the reasons for detention; (b) the length of time already spent in detention; 6

9 (c) the length of time that detention is likely to continue; (d) unexplained delays or lack of diligence caused by either the Department or by the subject; and (e) the existence of alternatives to detention. 3. Chairperson's Guidelines on Detention The Chairperson of the Immigration and Refugee Board has issued a Guideline in regard to detentions, which became effective on 12 March It is available on the website of the IRB: ( The Guideline covers long-term detention, the notion of "danger to the public", alternatives to detention, evidence, and procedure. It is required reading for counsel in this field of practice. It is 13 pages in length, and contains plenty of helpful notations, including case law. The IRB has also published a lay but helpful brochure on Detention Review Hearings (ISBN: , Catalogue Number MQ21-33/2006). Have a few of these in your office and give them to clients so that they can educate themselves in appropriate circumstances. In my office, I keep an active precedent file for Detention Reviews, in which is located a copy of the IRB Guideline, copies of the salient and leading cases, copies of Retainer Agreements, blank Use of Representative forms, and research memos I have done for some of the leading cases I have acted on. Whenever I am retained on a matter that does or could involve a detention review, this is the first file I reach for. Things happen on short notice, so it is prudent to be efficient with your time. 4. Your Retainer Make sure that you have a retainer signed in writing, either by the detainee or by his/her supporters. A simple practice tip: if the detainee is also subject to removal proceedings, you had better have a Canadian/permanent resident stakeholder commit to your fees. If your detainee client is ultimately removed from Canada, it is not likely that your bills for legal services will be one of his priorities. Normally, I get the retainer signed in my office by the detainee's supporter who contacted me first, and then later that same day or the next, by the detainee him/herself when I first meet them at the jail. On a related point, make sure that your retainer deposit is a healthy one. A released client may be through with your services and therefore not motivated to pay your fees. 7

10 5. Access to your client When you are first retained, you must immediately make your best efforts to do the following: (i) Obtain the detainee's version of the events. This can be done first by interviewing the detainee's relatives, friends, colleagues, neighbours, employer, etc... Make phone calls, have meetings, get documents. Quickly! (ii) Call the Canadian Border Services Agency (CBSA), and track down the name of the officer responsible for the matter. Speak to the officer responsible, and obtain from the officer the officer's position in regard to detention/release. Due to privacy legislation, officers of the CBSA are not supposed to talk to you about any case in particular without first having a Use of Representative/Release or Consent signed by the client. So, if you get stonewalled because you do not yet have the Release/Consent signed, you had better get yourself to the jail to get same signed, and fax it ASAP to the CBSA officer. (iii)once you have the position of the CBSA, you will know how hard you need to work and what evidence you need to acquire, confirm, or rebut in order to prepare for the case. Normally, if there is going to be a Detention Review, it is because the CBSA is seeking continued detention, on either the primary ground of alleged danger to the public, or on the secondary ground of alleged flight risk, or on both. The detainee's identity may also be an issue. In any event, you have your work cut out for you, with little time to do it. Again, just another hurdle to be mindful of. (iv) Accessing your client is problematic. Communicating with them if an interpreter is required complicates the matter significantly. You will need to have a police check performed for any interpreter you plan to take into the jail. The jail will do the police check, but requires 48 hours to do so. (v) Line up a surety who is liquid to provide a cash bond and/or a performance bond. This is usually required as a condition of release. There should be a relationship of some kind between the surety/guarantor and the detainee, which the Board Member will assess to determine whether the former is able to impose some restraint on the detainee. Family members, close friends, employers, church groups and even NGOs may be able to exert influence on the detainee so as to secure compliance with other terms and conditions, including for example appearing for their removal. 6. The Hearing (i) Venue of Hearing It may be held at the jail or detention facility where the detainee is being held. This creates its own limitations for the following reasons: 8

11 a. High Security Immigration detainees are often kept in the maximum security portion of the jail. In Toronto and Montreal the CBSA has its own detention facilities. This makes access to your client very difficult, and time consuming. Get to the hearing early, and count on delays. If the hearing is held in a jail or other detention facility, it will likely be impossible to get any other viva voce evidence into the hearing other than the testimony of the detainee, simply because as a jail, members of the public are not allowed into the high security areas where the hearings are normally held. Accordingly, to get the evidence of others before the Member, affidavits, unsworn statements and other documents are the only means to do so. If the hearing is taking place by telephone or video-conference, these documents need to be faxed to the Immigration Division, Attention: Registrar, marked URGENT, before the hearing, and best done so the day before. b. Hearing Room If the hearing is conducted in a jail or other detention facility, this is often very small, crowded, and lacking in privacy. It could be hot, noisy, and smelly. Privacy and confidentiality may be compromised. If you need to speak in confidence to your client prior to the commencement of the hearing, request to do so. If language is a barrier, this will only complicate matters, since you will need to use the interpreter of the IRB. Do not be shy to make these requests. Members know the difficulty of access, and will readily grant the request. Ask for 15 minutes, and use the time wisely to iron out with your client any matters or evidence that is not clear. (ii) The Proceedings a. Evidence There are no statutory provisions at all regarding the matter of evidence in detention review proceedings. Normally, the CBSA officer calls no witnesses, and merely reads into the record the notes of the investigating and arresting officers, who are not ordinarily present at the hearing. This routinely means an abundance of hearsay evidence not subject to cross-examination. In addition, the CBSA officer will likely file some documents, which, if you are lucky, you have seen the day (at most) before the first hearing. Often, however, due to how quickly and without notice these detention reviews proceed, you may only see the documents relied upon by the CBSA at the hearing itself, that is just before it commences. Immigration Division Rule 26 requires disclosure as soon as possible for both the 48 hour and the 7-day 9

12 review. The same Rule requires 5-day advance disclosure for each 30-day review. Despite the Rules, the CBSA and counsel generally ignore the requirement of advance disclosure. You will likely receive and you will likely provide documents just before the review hearing commences. Board Members generally allow this to happen, provided neither party is surprised or prejudiced. Procedural fairness at least requires an opportunity for you and your client to review and comment on the documents. I have never seen a document excluded from the proceeding because of either late disclosure or surprise. The receiving party will merely be given a chance to read and comment on it. Therefore surprise can and does sometimes sink your case, however, it can also work to your advantage, since you as counsel are also not faced with any strictly-imposed advance disclosure rules. It is of considerable note that hearsay evidence, even unreliable, inconsistent, and implausible hearsay evidence, is frequently relied on by CBSA officers at these hearings. It is admitted into evidence, as long as it is relevant. Your job as counsel is to be better prepared than the CBSA officer, and to challenge not the admissibility of the evidence, but rather its reliability, plausibility, and ultimately its weight. Do so by the use of rebuttal evidence and submissions. Also, the CBSA hearings officer will not normally have interviewed nor even met the detainee (this is particularly true at the first or 48 hour detention review). The hearings officer will usually merely be relying on the notes of the arresting officer(s) and other documents. When first arrested, and without the benefit of legal counsel, detainees often say little and even more often make inconsistent or inaccurate statements. Language deficiencies merely compound the problem. Our job is to present the matter in as coherent, as plausible and as credible a fashion as can be done. Credibility is often the central issue in these hearings. Your client will likely say that he cooperated with the investigation and the arrest, and further that he will comply with any conditions of release. He desperately wants his freedom, usually at any price or promise. CBSA often sees it differently. The CBSA often criticizes the detainee and tries to impugn his credibility by alleging that his statements are now self-serving. What is the Board Member to believe when documents are scant, witnesses non-existent, and cross-examination not available? Despite the limitations to the proceedings, including the thin evidence and the sometimes alarming allegations of the CBSA, considering also the rather high burden of proof placed on the CBSA who is seeking continued detention, there is in my view a considerable deference shown by Members to the evidence and the position of the CBSA. No Board Member wants to have their name appear in the daily papers as the one who ordered the release of your client, only to have your client commit a horrible crime. Accordingly, you should expect that full unconditional release is rare indeed. Be prepared instead for some onerous conditions such as cash bonds, performance bonds, restrictive living conditions such as curfew, and reporting in person. 10

13 Make a reasonable submission regarding an alternative to detention. The suitability of proposed bondspersons must also be addressed. Suitable bondspersons are stakeholders such as relatives, friends, employers and others who have a close trusting relationship and who can impart some moral suasion over the detainee so as to ensure their compliance with all terms and conditions. Unlike in the United States, commercial bondspersons are not acceptable in Canada. In Toronto, there is a special program called: The Toronto Bail Program. Counsel will often have a great advantage over your CBSA counterpart if you receive the evidence of the CBSA in advance, and if you have the good fortune to obtain other evidence that is contradictory and more reliable to the evidence of the CBSA, or which more completely defends your client. b. Burden of Proof Thanabalasingham, (2004) 9 January 2004 F.C.A, Stone, Rothstein, Sharlaw JJ.A. c. Being Likeable "It is the Minister who must establish, on a balance of probabilities, that the detainee is a danger to the public, or is a flight risk, if he wants the detention to continue. The onus is always on the Minister to demonstrate that there are reasons which warrant detention or continued detention. Once the Minister has made out a prima facie case for the continued detention, the individual must lead some evidence or risk continued detention. The Minister may establish a prima facie case in a variety of ways, including reliance on reasons for prior detention". As with most cases involving immigration, there is a considerable element of subjectivity involved in detention reviews. Trust, credibility and likeability must in my view be present. It is rare indeed for any detainee to have no fault at all, to be completely free of guilt, to be completely innocent of all wrong-doing. In my experience, the detainees who are given a chance at re-gaining their freedom, to receive from the Board Member an offer of release with conditions, are those who take responsibility for their actions, and who truly express genuine remorse and regret. Detainees who have learned their lesson, who are reformed, are most likely to receive an offer of release. Those who do not, by comparison, are likely doomed to continued detention. Accordingly, review with your client all facts which demonstrate remorse, regret, responsibility and co-operation with authorities. In deserving and suitable cases, have your client testify about his remorse, regret and reform. When a Board 11

14 Member asks the question of the detainee, do you have anything to add to the submissions of your counsel?, this is the time for him to address this issue directly. As a result, prepare him for this ahead of time and use this opportunity wisely. The Board Member would far prefer hearing from the detainee on this issue than from counsel. d. Submissions After all the testimony is completed, after the documents are entered and reviewed, it is time to make submissions. The CBSA officer, who has the burden of proof, must proceed first. Counsel has the last say. This is your opportunity to explain any weaknesses and propose reasonable alternatives to detention. Regarding the allegation by the CBSA that the detainee is being self-serving : I would note that it is hardly surprising that a detained person would give self-serving evidence in the hopes of being released. The question is whether that evidence is believable. Sittampalam (2006) 19 September 2006, F.C. If the CBSA alleges danger to the public, the evidence of current danger must support this allegation. While events that happened several years ago are relevant, they are not determinative. The sentence(s) imposed, including any fine or restitution, are considerations indicating the severity of the offence. The transcript of the sentencing proceeding, if available, may be useful. Make sure you produce evidence of remorse, reform and rehabilitation, if possible. A tribunal deciding whether a person should be released must not ignore indications of change and rely solely on past conduct (Willis v. Canada, 2001 FCT 822). Likewise, an absence of proof of rehabilitation does not necessarily amount to the presence of danger (Sittampalam (2006) 19 September 2006, F.C.). e. The Decision Members normally give their decisions orally at the hearing. In some cases that have a high profile and much evidence, the decision might be in writing following the hearing. Natural justice and procedural fairness require that the reasons be sufficient and adequate. Take good notes while the reasons are being stated by the Member. Employers, relatives and friends outside the jail will want to be briefed on how the proceedings unfolded. Win or lose, good notes will help you recreate the proceedings, the issues, and the results, which stakeholders aligned with the interests of the detainee will be desperate to hear. Request a copy of the decision and the reasons as soon as possible. The decision will come by either fax or mail from the offices of the IRB usually days, 12

15 sometimes weeks later, because it merely amounts to a transcript of what the Board Member stated at the hearing. I often notice errors in the transcript, so be mindful of these and take corrective action if the errors are material. The reasons of the Member should be and are normally distributed to the parties before the next hearing is held, in cases involving continued detention. Chase after them. The sooner you receive them, the better you are able to prepare for the next detention review. (iii) Altering Terms and Conditions Following Release Sometimes it is appropriate to seek changes to terms and conditions after release has been granted. Changed circumstances and/or the passage of time may justify doing so. Onerous reporting conditions or other limitations on liberty may, with the passage of time, be unnecessary. Applications to vary terms and conditions should be brought in writing to the Immigration Division of the Immigration and Refugee Board, pursuant to Rule 37 of the Immigration Division Rules, with notice to the CBSA. Most such applications are resolved in chambers without a hearing. (iv) Removal Order Stayed If your client is a permanent resident, was the subject of a deportation order which was appealed and ordered stayed, then an interesting consequence may flow. Pursuant to A68(2)(b), all conditions previously imposed by the Immigration Division are automatically cancelled. Accordingly, if your client has been detained then released by the Immigration Division subject to terms and conditions imposed, such as a bond and reporting conditions, these terms and conditions are cancelled, unless of course the Appeal Division imposes new or different ones. If your client wishes the return of bond money to which he is entitled, send a letter to the responsible CBSA office seeking the same. Only the person who deposited the bond money will get it back (i.e. it will not be the former detainee). 7. Other Noteworthy Cases Sabin (1994), 19 October 1994, F.C.T.D. Rothstein J. Salilar (1995), 30 June 1995, F.C.T.D. MacKay J. Bhatti (1996), 8 May 1996, F.C.T.D. Noel J. Kidane (1997), 11 July 1997, Jerome A.C.J. San Vincente (1998), 27 January 1998, F.C.T.D. MacKay J. Sittampalam (2004), 17 December 2004, F.C., Blais J. Welch (2006), 26 July 2006, F.C., Gauthier J. Sittampalam (2006) 19 September 2006, F.C. O Reilly J. Sittampalam (2008) 18 December 2008, F.C. Zim J. 13

16 Endnote # 1: This paper represents the views of its author, Warren L. Creates, B.A., LL.B. Mr. Creates has practiced Immigration, Citizenship and Immigration Law exclusively since He is a former Canadian government immigration lawyer as in-house counsel legal advisor to the Immigration and Refugee Board. He is a certified specialist in Citizenship and Immigration Law by the Law Society of Upper Canada. He is a guest lecturer at the University of Ottawa Law School, a published writer on Immigration Law, a frequent speaker at legal conferences, and is often consulted by the media on matters of Immigration Law. He is the Head of the Immigration Law Group at the law firm of Perley-Robertson, Hill and McDougall LLP located in the nation's capital city, Ottawa. He may be reached at (613) ; or at wcreates@perlaw.ca. Endnote # 2: The quotation on the cover page of this paper comes from the oral reasons for decision of Board Member Rolland Ladouceur in the Detention Review of Liang Liang held on 3 March 2009, at Ottawa. 14