Law Times

Page 10 March 9, 2015 • Law Times www.lawtimesnews.com FOCUS Lawyers want independent oversight for CBSA BY MICHAEL McKIERNAN For Law Times he Canadian Bar Asso- ciation has called on the federal government to create an independent oversight body to deal with com- plaints about and monitor the activities of the Canada Border Services Agency. The lawyers' organization says the CBSA stands alone among major law enforcement agencies without some kind of indepen- dent review mechanism or om- budsperson in place. The Royal Canadian Mounted Police, the Canadian Security Intelligence Service, and the Communica- tions Security Establishment Canada have all established in- dependent oversight processes. Outside the federal sphere, most provincial and municipal police forces have also followed suit. The CBSA's complaint process ends internally with the agency's president and ultimate responsi- bility landing at the feet of the fed- eral minister of public safety and emergency preparedness. "There's nothing external aside from a court challenge," says Peter Edelmann, an execu- tive member of the CBA's na- tional immigration law section who says the CBSA's scope of activities is incredibly broad. "They are one of the largest law enforcement bodies in the coun- try in terms of the number of offi- cers and they have a large array of powers that are in some way more intrusive than other law enforce- ment agencies," says Edelmann. "They conduct searches on a daily basis without warrants, they detain people for lengthy periods of time, they are involved in deportation, they are armed, and they are also involved in matters of national security." At the CBA's mid-winter meeting in Ottawa last month, its council comfortably passed a resolution, proposed by its immi- gration law section, to introduce a layer of civilian oversight for the CBSA. The move comes more than a year after the in-custody death of Lucia Vega Jimenez, a Mexican woman facing deporta- tion from Canada, put the issue of CBSA oversight in the spotlight. Jimenez killed herself at the CBSA's immigration holding centre at the Vancouver airport in December 2013. In October 2014, an inquest jury recommended, among other things, that the fed- eral government appoint an inde- pendent ombudsperson to medi- ate complaints about the agency after hearing about a series of fail- ings at the airport facility. Catherine Sas, a former chair- woman of the CBA's national immigration law section, says she was shocked by some of the evidence heard at the inquest, in- cluding testimony that revealed subcontracted security guards hired by the CBSA had failed to make scheduled room checks on the morning of Jimenez' death due to understaffing with a su- pervisor later falsifying the re- cords to make it appear as though the checks had taken place. "That kind of behaviour screams out for an oversight body," says Sas. "Because they don't have any sort of review entity to make sure there are checks and bal- ances on their activities, they do things they shouldn't be do- ing. I've been told by the CBSA that I can't see my own clients in custody, which is a pretty fun- damental right for them to have. From my own personal experi- ence, I can tell that the CBSA has needed oversight since its inception. It's just sad that it has taken a death to precipitate this attention." Sas says she and fellow mem- bers of the Vancouver immigra- tion bar were skeptical, despite some improvements to the con- ditions, following an invited tour of the revamped airport fa- cility last summer in the wake of Jimenez' death. While a CBSA official de- scribed new protocols to ensure only female guards were able to inspect female detainees, "right in front of us, a male guard walks straight into a woman's cell where she's sitting with her daughter," says Sas. "Exactly the thing we've just been told doesn't happen." Jimenez' case wasn't the first to draw public questions about CBSA oversight. In 2006, the commission of inquiry into Maher Arar's deportation and torture recommended the CB- SA's national security activities should be subject to indepen- dent review. According to Edelmann, the CBSA's young age, combined with constant adjustments to its powers, help explain the govern- ment's failure to establish any sort of independent monitoring body. "It has accumulated a num- ber of powers from various plac- es, and we have seen an expan- sion of its scope of activities over time," says Edelmann. As recently as Feb. 23 as part of its anti-terrorism legis- lation, the federal government proposed broader confisca- tion powers for the CBSA at the border in cases involving suspected terrorist propaganda. Edelmann says the agency itself has much to gain from stronger, independent oversight. "The vast majority of Canadi- ans will come into contact with the CBSA at some point, and they can see what an enormous amount of power its officers can wield. In some senses, they're more powerful than police be- cause a police officer can't just decide to search you on a whim and go through your things. At airports and border crossings, it's become standard procedure for officers to go through cell- phones and computers, so their powers are quite significant. In- dependent oversight is going to make the agency much stronger in terms of public accountabil- ity, which will give people more confidence in it. 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