Law Times

Page 4 January 9, 2017 • Law Times www.lawtimesnews.com Border agency oversight bill stalls in Parliament BY DALE SMITH For Law Times O TTAWA — A bill to create an inspector general for the Can- ada Border Services Agency is now in question after federal Liberals who used to sup- port it suddenly have cold feet on the matter. Bill S-205 would cre- ate the inspector general posi- tion and allow for the inspector general to self-initiate investiga- tions or accept third-party evi- dence. Nova Scotia Liberal Senator Wilfred Moore, a lawyer who was in independent practice un- til his appointment to the Sen- ate, sponsored the bill. He first drafted the bill in the previous Parliament after hearing about the 2013 suicide of Mexican national Lucia Vega Jimenez in immigration deten- tion. In the time since, other cases have come to light, including a case of someone who was de- tained allegedly for a crime he committed in Haiti while they wouldn't let him access proof that he was in Canada at the time. "If something like that can happen in Canada in 2016, [it's] unbelievable," says Moore. "You talk about our country being a place of rule of law, fair- ness, natural justice and here we are behaving basically like a banana republic — unaccount- able, embarrassing, denying any sense of right or justice to these people who are detained. It's wrong and improper and it's got to be fixed." While Ralph Goodale had committed to sponsoring the previous iteration of S-205 in the previous Parliament, which ended in 2015, when he became Minister of Public Safety and Emergency Preparedness later that year, his enthusiasm for the bill waned. "While he agrees with the spirit behind Bill S-205, he can- not support it at this time," said Scott Bardsley, spokesman for Goodale, in an email. Bardsley says they had con- cerns over "technical defects" in the bill's drafting and that the government had launched a public consultation for its na- tional security framework that would touch on the bill's subject matter, which it wanted to com- plete before committing to spe- cific legislation. Moore, however, reaches his mandatory retirement age this month and will no longer be in the Senate to shepherd the bill. As well, he hasn't yet found an MP willing to sponsor the bill in the House of Commons, which is unusual, especially for a bill that passed the Senate unani- mously in October. "A couple of people were in- terested and then they backed off, so I'm not sure if it was pres- sure from the caucus or from the minister's office, which is dis- turbing because this is the right thing to do," says Moore. "There's no reason for one of the members of the House not to pick this up." While the CBSA will be giv- en some broad oversight by a committee of parliamentarians under Bill C-22, currently be- ing debated in the Senate, that oversight remains focused on national security aspects of its mandate. This reinforces the need for another mechanism such as the inspector general model. "It is necessary because there really needs to be respect for the rule of law at ports of entry, particularly when you're dealing with human rights issues," says Jacqueline Bart of BartLAW Ca- nadian Immigration Barristers and Solicitors in Toronto. "There needs to be a better complaints procedure and bet- ter monitoring." Bart says that as an immigra- tion lawyer, she's seen the CBSA make "terrible decisions." "Once those decisions are made, it's very painful and ex- pensive for applicants to reverse them," says Bart. "For example, if someone has a cottage in Canada, and for some reason the officer didn't like the person, you have situations [where] they ban them from Canada and they write a Section 44 report. Basi- cally, it's a whole legal process in order to restore their ability to enter the country." Bart says that there exist what immigration lawyers term "rogue posts" where officers have a "cowboy mentality" when it comes to immigration mat- ters, and that they either don't have training or don't follow the training they've received and make discretionary decisions that don't follow policies when it comes to work permit applica- tions or refugee applications. "It affects business applicants as well as humanitarian classes," says Bart. "Oversight is key to monitor CBSA, both at a high level as well as with respect to the comportment of CBSA officers at ports of entry as well." The CBSA's powers not only include police powers such as the RCMP at the border but also branches that perform criminal investigations and immigration investigations inside Canada, as well as having overseas interdic- tion and information-gathering units. The agency enforces every- thing from firearms legislation to the Endangered Species Act to agricultural regulations. Peter Edelmann, a Vancouver immigration lawyer who helped draft the Canadian Bar Associa- tion's position paper on national security oversight, adds that like the RCMP and CSIS, much of the CBSA's work is done in secret and is never disclosed. Julie Taub, an immigra- tion and refugee lawyer in Ot- tawa who is a former member of the Immigration and Refugee Board, believes the bill should not be a priority. "At the present time, the pri- ority should be increased fund- ing to the CBSA to allow them to fulfil their primary mandate, to protect Canada," says Taub. "The government is planning to spend $340 million on con- tracting a new detention facility for illegals in Canada. There are approximately some 400 illegals in detention across Canada at any given time, but there are some 40,000 to 50,000 unexecuted warrants against illegal residents in Can- ada." Taub says that, recently, a high-level bureaucrat retiree from Immigration told her: "There are more like 500,000 illegal foreign nationals in Can- ada as there is no exit control on visitors, foreign workers or students." "So, unquestionably, the fo- cus should be on spending this money on significantly increas- ing CBSA staff, improving train- ing and increased resources," she says. However, having an indepen- dent watchdog for the border agency is an important consid- eration for visitors to Canada as well as refugees, says Josh Pat- erson, executive director of the British Columbia Civil Liberties Association. "The key for us is that there must be an independent ac- countability mechanism for CBSA," says Paterson. "The gov- ernment has committed to that, and we expect that they'll follow through on that. If not by way of an inspector general mecha- nism proposed in the Senate bill, then clearly that needs to be through government legislation. It's a critical demand that many groups including ours have put forward for years." LT NEWS NEWS NEWS Jacqueline Bart says that as an immigra- tion lawyer she's seen the Canada Border Services Agency make 'terrible decisions.' In-class and online programs recognized by Law Societies Executive Education to Navigate the Canadian Legal Landscape Visit Lexpert.ca to find out more For 25 years, The Annotated Canada Labour Code has been the authoritative resource labour relations professionals rely on to help them interpret and apply the Canada Labour Code. 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You talk about our country being a place of rule of law, fairness, natural justice and here we are behaving basically like a banana republic — unaccountable, embarrassing, denying any sense of right or justice to these people who are detained. Wilfred Moore

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