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Immigration lawyers express support for CBSA watchdog

Focus on Immigration Law
|Written By Lisa Cumming
Immigration lawyers express support for CBSA watchdog
Barbara Jo Caruso says there is a need for an independent watchdog to review the operations and policies of the Canada Border Services Agency.

Immigration lawyers are voicing support for an independent federal agency that would review the Canada Border Services Agency and the Royal Canadian Mounted Police.

Details on the proposed body — the Canada Law Enforcement Review Commission — emerged earlier this year. Through a federal freedom-of-information request, media obtained a report produced for Public Safety Canada, authored by former Privy Council Office chief Mel Cappe, for a new independent watchdog to handle public complaints about the CBSA and the RCMP.

Lawyers say that an independent review body for the CBSA and the RCMP would increase accountability and transparency because complaints wouldn’t be reviewed internally and recommendations from the agency would be made public.

Barbara Jo Caruso, a partner at Corporate Immigration Law Firm in Toronto and an executive member in the Canadian Bar Association’s immigration section, says an independent watchdog is “absolutely necessary.”

“We often have clients that have language barriers or they are coming from countries where they are not accustomed to dealing with persons in authority in a democratic society, so they tend to be more vulnerable to being intimidated or concerned that what they are going to say or do may negatively impact them,” she says. 

Caruso says an independent review body would be useful for immigration lawyers — and, more importantly, their clients — because lawyers represent people who cross the Canadian border, whether by air or by land.

“The frequency of incidents, some more minor and some more serious, is quite high in terms of issues that the general public encounters in dealing with the agency, and sometimes it’s as simple as professionalism, but other times, it’s quite serious in terms of an infringement of rights, the ability to enter the country to work or to study in Canada. The ability to just enter the country as a tourist can be denied,” she says.

She says an independent agency reviewing the CBSA would benefit Canadian citizens and CBSA agents as well.

“[T]here are always two sides to a story,” she says.

“If an incident or a circumstance arises and there is a complaint, having an independent body to review it and an independent process might actually benefit the CBSA officer, and in some instances, vindicate their exercise of jurisdiction.”

Negar Achtari, a senior partner with Achtari Law in Ottawa, says that, presently, if a person has a complaint with the CBSA, they can write to the CBSA’s complaint section, but it’s unknown what happens with the complaint.

“The internal review is not something [lawyers] have access to so, hopefully, with that kind of a body, we will know what kind of standards the CBSA is held against and how complaints are treated and evaluated,” she says.

Mel Cappe, a professor at the University of Toronto’s School of Public Policy and Governance and the author of the report, confirmed with Law Times that the proposed agency would be able to handle public complaints about the Canada Border Services Agency and the RCMP, dismiss frivolous complaints, share information with other review bodies and follow up on evidence and issue non-binding recommendations to the RCMP and CBSA.

It would also be able to initiate reviews and look into issues on its own accord. As well, the minister of Public Safety would be able to instigate the agency to look into issues and conduct reviews.

The issuing of non-binding recommendations gives lawyers mixed feelings about the effectiveness of the proposed agency.

Robert Israel Blanshay, founder and senior lawyer of Blanshay Law in Toronto, says he doesn’t see the purpose of creating a federal agency that can only make non-binding recommendations.

“If you’re going to create an independent agency or body overseeing CBSA, what’s the point of non-binding proposals?” he says.

Blanshay says the Ontario Superior Court was “wide-eyed and shocked” when hearing details during the 2017 hearing on Ricardo Scotland, an immigration detainee from Barbados. Scotland had no criminal record, but he was held for 18 months over two stints near Niagara Falls, Ont. in a maximum-security detention facility over two years.

“There are real, concrete concerns about the agency,” he says.

Caruso says that independent oversight of the RCMP was called for during scrutiny over the treatment of Maher Arar. Arar, a Canadian citizen, was deported from the United States to Syria in 2002, where he was tortured, because of inaccurate information given to United States agents by the RCMP.

Last year, the federal government passed Bill C-22 to establish the National Security and Intelligence Committee of Parliamentarians, which has the authority to inspect national security and intelligence activities across the Government of Canada, including the RCMP and CBSA.

The government has also endeavoured to create the National Security and Intelligence Review Agency, a review body that would act as an independent agency with the ability to review national security and intelligence activities across the Government of Canada, including those done by the CBSA.

— with files from Gabrielle Giroday


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