Table of contents
Scope of the audit
The work of the
ID in statistics
Role and Mandate of
Recruitment and Qualifications
Access to Legal Services
Electronic and In-person Hearings
Particular areas of concern
Inaccuracies and Inconsistencies in Factual Findings
Uncritical Reliance on Statements by
CBSA Hearing Officers
Failure to Hear Evidence from the Enforcement Officer or Investigator in Appropriate Cases
Failure to Allow Detained Person to Hear and Present Evidence
Failure to Question
CBSA on Delay
Barriers to Participation of Detained Person in the Hearing
Need for Active Adjudication in Considering Alternatives to Detention
Failure to Decide Afresh
Over-reliance on Previous Decisions
Fairness Issues for Detained Persons with Mental Health Problems
Rigid Interpretation of Statutory and Regulatory Factors
Danger to the Public
A. Introduction: Why It Matters
B. Overview: Realignment with Statutory Mandate
C. Increased Oversight of Cases
D. Tools to Support a Robust Review
E. Immediate Review of Long Term Detention Cases
F. New Hearing Protocols to Support Accessible and Active Adjudication
G. New Expectations for Decision-making
H. Access to Legal Services
I. Role of Designated Representatives
J. Review of Policies on Bonds and Terms of Release
K. Professional Development and Recruitment of Members
L. Persons with Mental Health Problems
This is the report of an external audit commissioned in September 2017 by the then Chair of the Immigration and Refugee Board (IRB), Mario Dion. The mandate of the audit is to assess hearings and decisions in randomly selected cases where immigration detention exceeded a minimum of 100 days, in order to determine the prevalence of issues relating to the fairness of the process, and its compliance with the
Charter of Rights and Freedoms, as identified in a series of decisions of the Federal Court, the Federal Court of Appeal, the Alberta and Ontario Courts of Appeal and the Ontario Superior Court of Justice.Footnote 1
The audit was conducted over a seven-month period by a single auditor, working independently and with the assistance of a second individual who reviewed French-language hearings. The audit completed a detailed review of over 300 detention review hearings and decisions conducted under the
Immigration and Refugee Protection Act (IRPA) and Regulations (IRPR) by the Immigration Division (“ID”) of the
IRB. The hearings and decisions were pulled from 20 filesFootnote 2 that were randomly selected. The focus was on the conduct of hearings, on whether the hearings met standards of fairness as articulated by the courts, and the related question of whether or not the decisions fairly reflected the evidence and submissions of the parties.
The audit was not intended to be a legal review of whether the decisions correctly applied immigration law and jurisprudence, outside of the particular fairness issues identified for consideration. The auditor and the reviewer brought extensive adjudicative and litigation experience to their work, but not expertise in immigration law.
The average length of immigration detention in Canada is 1.7 months. In 2016 and 2017, an average of 87% of individuals held in immigration detention were released within 90 days. The audit did not review any files in the significant majority of cases in which detention was relatively brief. All of the hearings and decisions reviewed occurred in files where detention had continued for more than four months.Footnote 3
The overall finding of the audit was that, in a significant number of these hearings and decisions, there were notable discrepancies between the expectations articulated by the courts and the practice of the
ID. Although the jurisprudence is evolving and is not entirely consistent, there is cause for concern to the extent that the courts have been critical of practices which the audit found to be present in many of the files reviewed. In some instances, the practice of the
ID has already been modified to reflect judicial feedback. The report identifies other areas where more change is needed.
There were a number of common features present in hearings that met the judicial standards – the detainee was generally represented by counsel; the detention was recent and relatively short; and sometimes there was very significant evidence supporting a finding of public danger or flight risk. In a surprising number of these cases, the detained person did not challenge their upcoming removal, cooperated in getting travel documents and did not seek release from detention, even where represented by counsel, unless detention dragged on for several months. In the significant majority of cases with these characteristics, detention ended within 6 months.
In contrast, the hearings in our sample that fell short of judicial expectations were clustered in very long-term detention cases where the individuals were unrepresented at nearly all their hearings. In some files, successive hearings were problematic over months and years. The pattern in these files was that a lawyer would attend two or three
ID hearings, over a period of one to seven years, to present a proposal for release which was not accepted. The detained person would be unrepresented at all their other
ID hearings, although in some cases, their lawyer would provide representation before the courts or at the Immigration Appeal Division (IAD) or in making a refugee or Pre Removal Risk Assessment (PRRA) claim. The detained person would often stop participating in
ID hearings and sometimes stop attending altogether. Hearings would become shorter and shorter; many hearings were completed in less than five minutes.
Hearings with these characteristics made up 50% of the hearings reviewed but occurred in only 30% of the files. In many files, if there was a deficiency in one area, there were multiple deficiencies that occurred in successive hearings over an extensive period of time.
In our sample, the files with long-running and recurring deficiencies were Ontario detentions, although about 30% of those files were transferred between
ID regions, from Central Region (which encompasses most of Ontario), to Eastern Region (which includes parts of Eastern Ontario). Notably, although Ontario is the province with the highest number of persons detained for immigration purposes, it has the lowest rate of representation by counsel of the three regions. Legal Aid Ontario does not provide duty counsel for detention hearings and appears to infrequently issue legal aid certificates for private representation.
The sample included files for five individuals who were held for more than two years.Footnote 4 Only one of these individuals was eventually deported.
Among the four individuals who were ultimately released, the average period of detention was 53 months. In only one of these cases, was there a criminal record that involved a lengthy sentence. One of the four individuals was released by the Ontario Superior Court on a
habeas corpus application; one was released after receiving a positive Pre-Removal Risk Assessment (PRRA); two were eventually released by the
ID with community and therapeutic support.
In all four cases where the person was eventually released, he or she suffered from mental illness or other health challenges that began or became more critical while in detention. One of these individuals was held in solitary confinement during part of his detention. Another suffered a complete mental health breakdown and was held in a catatonic state for over three years on the basis that he was a flight risk and a danger to the public. In all but one of these cases, the individual was rarely represented by counsel at detention hearings. This group of cases illustrates an observation of the Ontario Court of Appeal in
Chaudhary v. Canada, to the effect that after 18 months of detention, release seems to become “less likely at each successive review”.Footnote 5
This report and its recommendations are offered as a starting point only. Given the limited time frame and scope of the audit, the report can only point to areas of concern and opportunities for change, in the hopes of contributing to a fairer review process for persons who are detained for immigration purposes.
Scope of the audit
It is important to say at the outset that the audit did not review the conduct or qualifications of individual
ID Members or
ID Members as a group; rather, it reviewed the fairness of the adjudicative practices and outcomes. In the course of conducting the review, a number of related issues were noted that fall outside the audit’s specific mandate and in some instances outside the control of the
IRB itself. In the hopes of contributing to a broader discussion, those issues are discussed briefly below under the heading Contextual Factors.
The key factors that the audit was asked to consider in evaluating each hearing and decision are set out below.
- Members’ introduction to hearing process and consequences; appropriate if unrepresented? Were any special barriers identified at the appropriate stage?
- Steps taken to ensure detainee understands the grounds upon which release could happen and the steps he or she could take to secure an alternative to detention
- Disclosure by
- Independent assessment of the facts in deciding flight risk and public danger; without undue reliance on
CBSA evidence; considers and assesses testimony/submissions of detainee
- Understanding of s.58 statutory duty to release unless satisfied re public danger or flight risk
- Fresh assessment of the issues at each hearing; consideration paid to new circumstances including the passage of time
- Treatment of and reliance on past decisions
- Onus placed on
CBSA at every hearing
- Consideration of s.245 factors in assessing flight risk
- Consideration of s.246 factors in assessing danger to the public
- Consideration of s.248 factors before extending detention, including length/reason for detention,
CBSA delays, non-cooperation by detainee
CBSA questioned on reasons for delay in effecting removal
- Consideration of alternatives to detention at every opportunity
- Willingness to fully and independently assess alternatives to detention presented by detainee including hearing evidence from potential bondspersons and other witnesses
- Recognition that detention can only continue for a period that is reasonable in all the circumstances including flight risk, public danger and likely removal time
- Hearing environment or circumstances
- Adequacy of the reasons for decision
- Other factors affecting fairness of the process
The audit reviewed 312 hearings from 20 different filesFootnote 6 for 18 individuals. The files chosen for the audit were pulled by the
ID from all detention files that were closed between April 2016 and August 2017 where detention had exceeded 100 days. Of the 18 individuals, 14 were removed from Canada and 4 were eventually released.
In all the cases selected for the audit, the release or removal date occurred in 2016 or 2017. This meant that most hearings occurred in the last two years, but where detention had been lengthy, the hearings took place as early as 2010.
The size of the sample from each region was uneven in order to reflect, to some extent, the distribution of hearings across the country. A disproportionally larger sample was pulled from Eastern Region in order to include a selection of English and French language hearings.
Almost 60% of the hearings reviewed were from Central Region. Although Central Region conducted about 50% of all detention reviews in Canada in 2016 and 2017, its files were represented at a higher rate in the pool from which the sample was selected. This is because Central Region is responsible for a disproportionate share of long term detention cases. In the pool of all files closed in the relevant time period where detention had exceeded 100 days, 75% of the files were from Central Region, accounting for 80% of all the hearings in the pool from which the sample was selected. Files from Eastern Region comprised 15% of the files and 13% of the hearings in the pool; 10% of the files and 7% of the hearings were from Western Region.
The shortest actual period of detention in the files reviewed was 4 months. The longest period of detention was over 7 years. The places of detention included: Immigration Holding Centers, provincial remand jails for short term criminal incarcerations, and provincial jails for sentence-serving inmates.
The audit listened to 80% to 100% of the hearing tapes for each file, beginning with the 48 hour review, the 7-day review and including almost every 30-day hearing thereafter until the detainee was released or removed from Canada.Footnote 7
In every case, the review included:
- Audio review of the recorded hearings, including the delivery of reasons.
- Detailed review of the paper file, including documentary evidence introduced at the hearings, adjudicator handwritten notes, completed hearing summary forms.Footnote 8
- Decision and hearing transcripts where available.
The work of the Immigration Division in statistics
Number of Individuals Held in Detention
In 2017, 3,557 individuals were held in immigration detention in Canada. This was down from a total of 3,870 in 2016.
The largest group of individuals detained was in Central Region. In 2017, 43% of detained persons were held in Central Region, as compared to 33% in Eastern Region and just under 25% in Western Region. In 2016, Central Region had an even higher proportion of the detained population: 49%.
Length of Detention
In 2017, 88% of persons held in detention were released within 90 days, down slightly from 86% the previous year. Of the remaining 436 individuals in 2017, 64% were released within 180 days.
After 365 days, 80 individuals remained in detention, representing 2% of all persons detained in 2017. This was down from 140 people held for over 365 days in 2016, representing a 43% decrease.
Breaking down the 2016 and 2017 numbers regionally, we find that most individuals who were held over 90 days were in detention in Central Region. In those two years, an average of 62.5% of individuals held for over 180 days were detained in Central Region.
Looking at longer term detentions, the predominance of Central Region becomes more pronounced. Over 2016 and 2017, 43% of all detainees were in Central Region, but of those still in detention after 365 days, 72% were in Central Region. However, there was a significant drop in detentions over 365 days in Central Region between 2016 and 2017: from 100 persons to 58 persons.
In both years, the remaining individuals held for longer than 365 days were quite evenly divided between Eastern and Western Regions. In 2017, there were 12 individuals held for over 365 days in Eastern Region and 10 individuals in Western Region. In 2016, 20 individuals in each region were held for over 365 days.
Number of Hearings
In 2017, 11,061 detention review hearings were held in Canada. In 2016, there were 12,251 hearings.
On average over the two years, 51% of detention review hearings took place in Central Region. In the same two year period, 31% of detention review hearings took place in Eastern Region, with the remaining 18% occurring in Western Region.
On a national basis, continued detention is ordered at almost 60% of hearings. Central Region has the highest rate of detention, averaging 62% in 2016 and 2017, as compared to 51% for Western Region and 55.5% for Eastern Region.
In 2017, individuals in detention were represented by a lawyer at 61% of review hearings. At another 6% of hearings, the detained person was represented by an immigration consultant.
Levels of representation were much lower in Central Region. In 2017, in Central Region, counsel represented the detained person at only 38% of hearings.
In Western Region, counsel represented the detained person at approximately 70% of hearings in 2017, as compared to 76% of hearings in Eastern Region.
Grounds of Detention
In 2017, danger to the public (s.58(1)(a)
IRPA) was a ground of detention relied upon in 13% of decisions nationally, up from 11% in 2016. Unlikely to appear (‘flight risk’ under s.58(1)(a)
IRPA) was a ground of detention in 77% of 2017 decisions. Identity (s.58(1)(c)
IRPA) was a ground in 8% of 2017 decisions and reasonable suspicion (s.58(1)(d)
IRPA) was relied on in only 2%.
Different regions have a different predominance of grounds. In Central Region, unlikely to appear, or flight risk, was a ground of detention in 85% of all decisions, as compared to 77% nationally. Flight risk was a ground of detention in 63% of Eastern Region decisions and 75% of decisions in Western Region. Central Region issued 50% of all decisions that relied on flight risk in 2017.
Public danger was a less frequent ground of detention in Western and Central Regions, as compared to Eastern Region. In 2017, public danger was a ground in 15% in Eastern Region decisions, as compared to 11% in Central Region and 9% in Western Region. There were 692 decisions citing public danger in Central Region in 2017, compared to 760 public danger decisions in Eastern Region.
Identity was a more frequent ground of detention in Eastern Region. Identity issues were cited in 13% of Eastern Region decisions, as compared to 3% in Central Region and 11% in Western Region. In fact, 61% of all hearings where identify was an issue were in Eastern Region: 662 out of 1092 in 2017.
There are challenges to ensuring a high standard of adjudicative fairness within the structure of the statutory scheme for reviewing immigration detentions. The Alberta Court of Appeal put it this way:
The statute contemplates that
ID reviews occur frequently in a timely manner. It is an administrative process, with a focus on the factors for detention set out in the regulations. However, the serial nature of the reviews, the role of the reviewing officer, and the deference given to earlier review decisions can lead to
ID decisions becoming cumulative, without constituting a fresh review of the legality of the detention. The statutory conditions for detention and the nature of the review also tend to limit its scope.Footnote 9
There are also contextual factors that may hinder the
ID in ensuring a robustly fair process. Although complex and largely beyond the scope of the audit, and in some cases, outside the control of the
IRB itself, I have been asked to briefly address the factors that were identified in order to add context to my recommendations.
Role and Mandate of
Based on our review of hearings and interviews within the
ID, it appears that
CBSA has a regional culture which affects how the
ID does its job. For example, the
ID does not approve performance bonds on a uniform basis across the country, apparently based on different
CBSA regional policies.Footnote 10 It was suggested that
CBSA in Vancouver works more collaboratively with the
ID than in Toronto; recommends release more often;Footnote 11 and is sometimes helpful in finding community resources that will support release. In British Columbia and Quebec, it appears that
CBSA will work with legal aid-funded duty counsel to develop a release plan.
On the other hand,
CBSA was described as “tougher” in Central Region and in the prairie provinces, more likely to oppose a bondsperson, less likely to accept a release plan. In our sample, some Hearing OfficersFootnote 12 in Central Region, and to a lesser extent in Eastern Region, appeared to be more adversarial in their hearing conduct than in Western Region; more likely to overstate the evidence or draw conclusions based on speculation rather than proven fact. In some hearings, it appeared that the
ID Member was somewhat intimidated by the vehement positions taken by the
CBSA Hearing Officer. Hearing Officers, especially in Central Region, did not adopt an “officer of the court” approach that the Canadian courts expect from Crown prosecutors.
Under the legislation, the
CBSA each have a role in approving release from detention on the basis of an approved bondsperson.Footnote 13 The
ID orders release and can do so contrary to the recommendation of the
CBSA, but it is the
CBSA who must approve a bondsperson after the
ID has ordered release, and can decline to do so on a number of grounds, including not being satisfied that the bondsperson can fulfill the financial obligation arising under a performance bond.Footnote 14 In Western Region, it was suggested that cash bonds are ordered in preference to performance bonds, perhaps because
CBSA is considered “tough” in their financial assessments and likely to reject a release plan based on a performance bond.
In Central Region, the shared responsibility in approving a bondsperson was further complicated by the practice, now discontinued, of not allowing potential bondspersons to testify at detention hearings. In our sample, the practice observed was that, when a proposed bondsperson attended at the hearing location, he or she was not given the opportunity to testify at the hearing. What happened instead was the
CBSA Hearing Officer would privately interview the proposed bondsperson outside the hearing room (without the detained person being present unless he or she had counsel who could observe the questioning). After conducting the interview, the
CBSA Hearing Officer would report in the hearing room on their understanding of the circumstances and suitability of the bondsperson. The presiding Member would accept this second-hand information instead of allowing the person to testify and answer questions.
This practice meant that only one party, the party opposite in interest, had access to the witness. The witness’s evidence was taken in private and summarized. The detained person did not have an opportunity to hear the evidence or ask questions of their own witness. The Member also denied themselves that opportunity. There was no examination on the record and no opportunity for cross-examination.
This practice is completely inconsistent with the most basic tenets of procedural fairness, including the right to hear and present evidence in an open hearing, and to question witnesses. The practice was in place in Central Region for several years and appears to have continued even after Tribunal-wide training in February 2016 that addressed the need to allow potential bondspersons to testify. The audit was told that the practice was finally abandoned in 2017. The fact that it was not identified as problematic until relatively recently is symptomatic of an underlying failure to recognize and address basic procedural fairness. In our sample, there were many examples, discussed below,Footnote 15 of potential bondspersons not being allowed to testify at hearings.
Finally, the role of the Toronto Bail Program (TBP)Footnote 16 should be mentioned because of its relationship with
CBSA. In Toronto, the bail program for individuals held pending criminal charges has been expanded to be offered to immigration detainees. The expanded program is apparently only available in Toronto and is funded by
There are no statistics available to indicate how many individuals are released annually through the TBP or what percentage of overall releases involve the TBP. In our sample, Members in Central Region always accepted release proposals that had TBP support and always rejected proposals where a community-based agency was lined up to provide a similar support service to TBP. In our cases, if the TBP declined to provide release support, no
ID Member would order their release at any subsequent hearing even if a community agency was willing to take on the same kind of oversight offered by TBP. Community agencies were rejected on the basis that they did not have the same “inside track” to
CBSA information and support.
The availability of the TBP is, overall, a positive thing, allowing individuals to be released who might otherwise be unable to put together an alternative plan. Members in hearings would sometimes ask
CBSA to refer a detainee to the bail program for an eligibility assessment. Other times, a Member would suggest to the detained person that they contact the TBP directly. But there is a cautionary note: based on our sample, it appeared that both
CBSA and the
ID in Central Region undervalued the viability of release plans that did not include TBP. It appeared that release plans were rejected in Central Region that would most likely have been accepted in other Regions.
Unfortunately, this means that one of the parties to the detention review process,
CBSA, has a non-arm’s length relationship with an agency, TBP, on which the
ID has conferred something of a gatekeeper role in respect of release. The danger of the
ID ceding any aspect of its decision-making authority to
CBSA, and failing to maintain a fully independent adjudicative role, has been remarked upon by the Ontario Superior Court.Footnote 18
Finally, I note that, as an institutional litigant appearing in every case before the
ID, the manner in which
CBSA undertakes its statutory role has a direct impact on how the
ID discharges its functions. This is particularly evident from the regional differences in
CBSA’s approach to cases before the
ID. While outside the scope of this audit, it is clear that a more nationally consistent approach on the part of
CBSA that reflected its role as an “officer of the court” could greatly assist the
ID in meeting the expectations of the courts and
Charter standards. This can be done without compromising
CBSA’s legitimate interests as a party before the
ID in the same manner that Crown Attorneys function in the criminal courts across this country every day.
Recruitment and Qualifications
The Federal Court has remarked upon the “extraordinary” power held by the
ID Members to detain individuals who are not guilty of any offence, noting that “the power of detention is normally within the realm of the criminal courts” and subject to “fixed periods of incarceration for various offences”.Footnote 19
The power to grant or deny liberty is, in our society, primarily held by provincial or federally appointed judges, who are almost exclusively lawyersFootnote 20 with many years of experience in the practice of law. In other federal or provincial tribunals with the power to order detention, decision-makers are appointed by Cabinet for fixed terms and typically sit in panels of two to five persons, including lawyers, retired judges, and professional experts.Footnote 21
To my knowledge, the
ID is unique in having the power to detain people vest in civil servants who are in permanent staff positions and sit as single adjudicators. The
IRPA does not provide for Members to sit in panels to hear cases. While non-lawyers can be excellent tribunal adjudicators, it is certainly useful to have Members with legal training and broad justice-sector experience, including in administrative law. Some
ID Members are lawyers, but the majority are not; their managers are also not necessarily lawyers. Given the current level of judicial scrutiny and in particular the Federal Court’s caution comment with respect to “maladministration” of the legislation,Footnote 22 the
ID may want to consider how it can recruit and retain more lawyers for these positions.
Apart from legal training, there may be a need for a different array of experience within the Member cohort. Just as appointments to criminal courts are balanced by both Crown and defense counsel appointments, and labour tribunals recruit from both management and union-side counsel, the
ID panel should include some lawyers with a background in representing immigrants in legal proceedings before the
IRB. There are reportedly many current Members who were previously employed by
CBSA. Ensuring a range of past experience is as important as building a cohort of adjudicators with gender, racial/ethnic and ability/disability diversity. This ensures that decision-making is informed by a breadth of life experience.
Based on our review, including discussions with management, it appears that the adjudicative culture at the
ID focuses on the independent responsibilities of individual decision-makers, rather than on the collective responsibility of Members to produce a cohesive body of jurisprudence that is marked by the quality and fairness of its decisions. This is out-of-keeping with the approach of many Canadian tribunals that have increasingly adopted a collaborative internal culture that expects decision-makers to work together in developing the best adjudicative practices, as well as a generally consistent approach to factual findings and statutory interpretations.
To that end, many tribunals have introduced greater institutional and collegial support to individual decision-makers without taking away from their ultimate responsibility to draw their own conclusions based on the case before them.Footnote 23 A more collaborative adjudicative culture can be expected to produce better decisions with fewer errors and inconsistencies, benefitting the parties and producing fewer costly judicial reviews and
habeas corpus applications. For a further discussion of the value of this approach, see
The Corporate Responsibility of Tribunal Members, an article by Ron Ellis first presented at the Conference of Canadian Administrative Tribunals in 2008.Footnote 24
As part of a shift to a more collective adjudicative culture, the
ID could introduce enhanced decision-making supports for its Members. For example, many tribunals provide for decisions to be reviewed before release by tribunal counsel and/or a senior adjudicator.Footnote 25 While recognizing that almost all
ID decisions are delivered orally at the end of the hearing, it would still be possible for tribunal counsel or a manager to regularly review decisions after delivery. This would allow management to be more aware of individual files and to flag potential issues such as those identified in the audit. It would also mean more support for individual Members who are handling difficult cases.
IRB has devoted significant resources to legal training for its Members, our review suggested that there is sometimes a gap between what is taught at training conferences and what is practiced on the ground. Unlike at many tribunals, there is no practice of Members taking difficult cases to a panel meeting, as has been approved by the courts.Footnote 26 If the
ID had regular panel meetings, and an expectation that Members could confer with other Members, counsel and managers on a regular basis, it would provide more opportunities to reinforce training in the context of day-to-day adjudication.
One function of panel meetings would be to provide a forum for the discussion of policy issues, such as the interpretation of statutory and regulatory provisions where there is a lack of clarity or inconsistency in the jurisprudenceFootnote 27 or practice issues such as the proper role of Designated Representatives. If, as discussed in Recommendations, the
ID moves to develop public Practice Directions or Interpretation Guidelines, panel meetings would be a good first forum for a discussion of drafts.
The evidence that we found of regional differences in file management and in adjudicative practices,Footnote 28 as well as the variation in the rate and length of detention across the country,Footnote 29 suggest that it would also be useful to find more opportunities for collaboration between Members nationally. Given that many hearings are conducted by video conference, it might be useful to have a practice of sometimes assigning hearings to Members from outside a region. Apparently this already happens when necessary to meet statutory timelines. Unfortunately, there is no opportunity to consider assigning cases with complex or novel issues to a three-person panel with regional representation because the
Act does not permit the
ID to do so.
Uneven Access to Legal Services
As reported above, rates of representation by counsel at
ID hearings vary significantly across the country, averaging 76% in Eastern Region; 70% in Western Region; and 38% in Central Region, in 2017.Footnote 30 Access to counsel also varies within regions as a result of differences in provincial legal aid programs. In our sample, the detained person was represented by counsel in less than 10% of the hearings reviewed in Ontario but at almost all hearings in Quebec and British Columbia. Many unrepresented detainees, in the face of extensive submissions by
CBSA Hearing Officers, barely participated in their hearings.
In Quebec, the provincial legal aid plan sends two duty counsel to the Montreal hearing location daily. Duty counsel try to attend all 48-hour and 7-day hearings, and attend 30-day hearings based on an assessment of need, if the detained person is unrepresented. Legal aid certificates are available for longer term detentions and continue throughout the period of detention, unlike in Ontario.
Western Region covers British Columbia, Alberta, Manitoba, Saskatchewan, Yukon, the Territories and Nunavut. About 50% of detention hearings in this region take place in person in Vancouver, with the rest being conducted by telephone or video hearing with the detained person usually located in Calgary, Edmonton, Regina, Saskatoon or Winnipeg.Footnote 31 At the Vancouver hearing center, the B.C. Legal Services Society has one or two duty counsel on site daily. The duty counsel determine which individuals most require their assistance. They attend most 48-hour hearings and select 7-day and 30- day hearings, based on need.
For detainees in Saskatchewan, no legal aid support is available. Legal Aid Alberta has two staff lawyers responsible for all immigration issues, including detention review hearings, one in Calgary and one in Edmonton. Depending on other responsibilities, they may or may not be available for
ID hearings. In Manitoba, the legal aid plan will provide representation to every person in immigration detention.
In Ontario, the Legal Aid Ontario’s Refugee Law Office (RLO) currently only represents at a limited number of
ID hearings, based on capacity. There is no duty counsel program. In our sample from Central Region, the detained person was represented at less than 10% of hearings. This is a much lower than the reported rate of representation in Central Region, which was 38% in 2017. The discrepancy is probably explained by the predominance of very long term detention in our sample of Central Region files.
Apparently Legal Aid Ontario (LAO) will provide a certificate for one or two hearing days to present a release plan but will not continue to fund litigation at the
ID. Typically, in our sample, the RLO or private counsel appeared once or twice over many months to present release plans. Although not apparent in the audit, apparently LAO has agreed to start providing RLO support at an expanded number of hearings where the individual has mental health issues or where a Designated Representative has been assigned.
While the question of legal aid funding for legal services is outside the scope of the audit, it is clear that the uneven level of representation across the country not only puts detainees in some provinces at a comparative disadvantage in securing release, but also has an adverse impact on the
ID’s work. The availability of legal aid-funded counsel in all regions would reduce the power imbalance in the hearing room as between detainees and the
CBSA and would greatly assist the
ID in the proper execution of its mandate.
Electronic and In-Person Hearings
In all three regions, the
ID holds both in-person and electronic hearings, depending on the location of the person detained. Electronic hearings are generally conducted by videoconference but if a person is detained outside of a major urban center, the hearing will be conducted by telephone. Hearings in Regina and Saskatoon are conducted by telephone.
The audit was able to observe five in-person hearings and 2 videoconference hearings, in Toronto and Montreal. In Montreal, the observed hearings were conducted at
ID hearing rooms co-located with Member offices. The detained persons were brought to the hearing location by
CBSA. This is the same as the arrangement for persons held in detention in Vancouver:
CBSA transports detainees to
ID hearing rooms.
In Toronto, the observed hearings were conducted at the
ID hearings rooms that are co-located with the Immigration Holding Centre. Two of the Toronto hearings were conducted by videoconference with inmates held in the provincial jail in Lindsay. In those cases, the person detained was unrepresented and there were no witness or potential bondspersons. However, the usual practice where the detained person is represented is apparently for their counsel to attend at the IHC hearing rooms, with any witnesses, and with the
CBSA Hearing Officer. The detained person participates by videoconference.
In some provinces, including Ontario, Members travel to correctional institutions and hold hearings in a room set aside, sometimes briefly, for this purpose. The audit was not able to attend a hearing in a jail but it was reported that there were often interruptions and that witnesses, including proposed bondspersons, were not permitted to enter the hearing room. This means that the Member has to interview any witnesses in the lobby or hallway, in the absence of the person detained, although presumably in the presence of
CBSA. This raises fairness issues, as discussed later in this report.
For immigration detainees, in-person hearings in a dedicated hearing room are the best option. The opportunity for in-person interaction between the Member and the person in detention can humanize the process and facilitate a fair and full hearing of the evidence. In particular, the current set-up for persons held in Montreal and Vancouver may be optimal: the separate location of the hearing rooms communicates to detainees that the
ID is independent from
CBSA; this may be less apparent to detainees brought down the hall for a hearing at the Toronto Immigration Holding Centre. However,
CBSA is responsible for transportation of detainees to hearings and may be moving to videoconference hearings in Montreal and Vancouver as a cost-saving measure.
Because the audit depended on audio recordings for the vast majority of the over 300 hearings reviewed, it is not possible to make detailed observations of the limitations associated with different venues and technologies. We did note that where the hearing was conducted in-person or electronically at provincial jails in Ontario (Maplehurst Correctional Complex, Central East Correctional Centre, Vanier Correctional Centre), there were frequent interruptions, including announcements over the sound system in the hearing room. We were informed that there were time limitations imposed by the correctional institutions, as well as difficulties associated with lockdowns.
The Supreme Court of Canada, in
Charkaoui v. Canada (Citizenship and Immigration),Footnote 32 considered security detentions under the
IRPA and established a standard of robust review of immigration detention to ensure compliance with sections 7 and 12 of the
Charter. The Supreme Court drew on the earlier Federal Court decision in
SahinFootnote 33 and held that detention reviews must consider the context and circumstances of each individual case and afford the detained person “meaningful opportunities to challenge their continued detention or the conditions of their release.”Footnote 34
Although the jurisprudence is evolving, and not entirely consistent, the
ID is now faced with a number of court decisions suggesting that a
Charter-compliant standard of robust and meaningful review is not being consistently met in detention review hearings, and that, in some cases, the
Charter rights of detained persons were breached by continued
ID-ordered detention.Footnote 35
The chart on pages 4 and 5 of this report was developed by the
ID to capture all of the factors identified in these court decisions as possible areas of concern. As noted above, the audit found deficiencies in one or more of the areas identified by the chart in approximately 50% of the hearings reviewed, clustered in 35% of the files.
Approximately 80% of the problematic hearings were in Central Region; the other 20% were in Eastern Region. This is partly explained by the fact that, in our sample and in
ID files generally, the longest term detentions are disproportionally found in Central Region. The pattern found in the audit was that the longer a detention continued, the more likely it was that the process fell short repeatedly. The other key factor in most of these hearings, all of which took place in Ontario, was the absence of counsel.
In these long detention files, we found, in successive hearings, that the
ID failed, over months and years, to undertake a fresh and independent assessment of the facts, relying instead on past decisions, and allowing
CBSA to rely on past submissions. Sometimes the problem was a failure to question
CBSA about delays or the utility of a stalled investigation. Sometimes the Member failed to hear evidence offered in support of a release plan or to bring a fresh mind to a proposal in the light of passing time. At many hearings, the Member declined to hear testimony from potential bondspersons. In one case, Members repeatedly accepted
CBSA’s interpretation of the evidence, failing to independently assess credibility or to critically examine the factual circumstances.
Too often in these hearings, it appeared that the onus of proof had slipped over to the detained person who was almost always unrepresented and powerless to articulate a fresh argument for release or to demonstrate rehabilitation while incarcerated without access to supportive programming that could assist with rehabilitation.Footnote 36 In many of these hearings, the Member did not appear to give meaningful consideration to the evidence or submissions offered by the detained person, failing to allow them to give affirmed evidence and failing to make findings on the credibility of their testimony.
While acknowledging that good practices were observed in many hearings, the task of this audit is to identify the practices and conduct that were not consistent with the jurisprudence that framed our review. The report will include recommendations on how changes can be made to help the
ID achieve greater consistency with the standards of fairness established by the jurisprudence.
Particular areas of concern
Inaccuracies and Inconsistencies in Factual Findings
ID Members are generally rotated through a detention file, with the result that, every 30 days, a different Member from the same office will chair a hearing to review an individual’s continuing detention. This practice is consistent with the requirement to “decide afresh”Footnote 37 at every hearing and serves to reassure the detained person that a set of fresh eyes will be examining their case every month. However, a disadvantage is that, in some cases, it was apparent, from month to month, that the Member conducting the hearing was not sufficiently familiar with factual circumstances which, if considered, might have supported release.
For example, in one file, a 2016 decision ordering continued detention finds that the detained person caused delay by failing to call her Consulate for scheduled interviews, relying on this in part for a negative flight risk assessment. However, a 2015 decision in the same case had directed
CBSA to facilitate the telephone interview with the Consulate; during that hearing, the Member had pointed out to
CBSA that the detained person had been prevented from having the interview due to jail lockdowns and other institutional problems preventing telephone access. In fact, the record showed that it took
CBSA four months to arrange a telephone interview that the detained person was at all times willing to participate in. This fact would have been apparent to the second decision-maker if he or she had the opportunity to review transcripts of prior hearings and/or decisions.
Indeed, one factor affecting the consistency and accuracy of findings is the fact that decisions are not uniformly transcribed, so that successive adjudicators are not necessarily familiar with the evidence or findings at previous hearings.Footnote 38
In some files, one can see an inconsistent or false narrative developing over time. Negative assumptions, not rigorously supported by the evidence, would sometimes gradually become part of the accepted history for the detained person. The problem of factual inaccuracies and even “rank speculation” in detention decisions has been identified by the Federal Court in
WangFootnote 39 and by the Ontario Superior Court in
Ogiamien,Footnote 40 ScotlandFootnote 41 and
Ali, the Court, in referring to the government’s position that Mr. Ali was actively thwarting the investigation, stated:
The authorities cannot discharge the onus that rests on them to demonstrate that the continued detention of Mr. Ali is justified, for immigration purposes, based on skepticism and speculation.”Footnote 42
There were several examples of what could be considered “speculation” in our sample. In one file, a 2016 decision declining to order release, relies in part on the fact that the detained person caused the forfeiture of “thousands of dollars” in posted bonds. On the other hand, a 2017 decision in the same case states, correctly, that it appears from the record that there was never any actual forfeiture of bonds in the case. Through months of hearings, decisions go both ways on this factual point, with some later decisions relying on the supposed forfeiture cited in the 2016 decision as a reason for maintaining detention.
In several files, factual findings changed over time, to the detriment of the detained person. In one case, after 24 months of detention, two decisions in 2014 cite, apparently for the first time, a past conviction for possession of a firearm. Earlier decisions, as well as a comprehensive case review in the paper file,Footnote 43 do not include any mention of this conviction. In fact, at a 2012 hearing, a Member notes that his “serious convictions are all dated”, pointing only to a robbery conviction in 2005 and an attempted robbery in 2007. Our review of all the available hearing recordings did not find any instance in which
CBSA cited a firearms conviction, including the very hearing where the conviction was first cited. Firearms are never mentioned again after the two 2014 decisions, but one decision in 2015 and one in 2016Footnote 44 cite “weapons” convictions as a reason for detention. Was there a conviction for possession of a weapon? Perhaps or perhaps not. But if someone is being held for 59 months as a danger to the public, it is important to do so on the basis of an accurate and consistent record of past convictions.
In reviewing successive hearings, it becomes apparent that, in the face of inaccuracies or vague misstatements, individuals in detention become discouraged or desperate, sometimes no longer attending, or attending without speaking, or becoming upset and angry at a hearing.
Perhaps the most glaring example is a hearing at which danger to the public is added as reason for detention, for the first time, after a person has already been held for more than a year. There is no new event;
CBSA does not argue for the additional ground. The decision cites an extensive history of convictions occurring “not that long ago”, without seeming to seriously take into account that almost all convictions took place more than 10 years earlier. The Member states: “Of course I will maintain the ground of danger …” without apparently realizing that he is adding a new ground. He gives no basis for deciding differently.Footnote 45
In this case, the ground of public danger is then maintained in subsequent hearings, based on consistency with this decision. In more than one hearing, the detained person tries to challenge the public danger finding. She is unrepresented. At one hearing, her submissions to the effect that she is not a public danger and has never hurt anyone are abruptly cut off. This hearing is presided over by the very presiding Member who first added public danger as a ground; he chides her for not understanding the basis on which she was considered to be a public danger, saying: “You’ve been through this process of detention review many times now … I believe you should know that you don’t need to have killed someone to be considered to be a danger to the public. You should know that.”Footnote 46 And yet it was this presiding Member who added public danger as a ground without giving any basis for coming to a different decision on this than at all previous reviews and without any submissions from either party.
Uncritical Reliance on Statements by
CBSA Hearing Officers
Related to the inaccuracy issue, is the fact that Members too often relied uncritically on statements made by
CBSA Hearing Officers. The danger of inaccurate findings is compounded by the rotation of Hearing Officers representing the
CBSA. In some cases, a Hearing Officer will keep a file over a longer period of time but rotation appears to be common. Because the audit listened to every hearing in most files, we were able to identify instances where the Hearing Officer, perhaps because of a lack of familiarity with the history of the case, misstated facts which were then relied upon in the decision. This was particularly a concern in very long-term detentions.
Sometimes inaccuracies in
CBSA submissions seemed to minimize delays in their own investigation. One example is a 2015 hearing where
CBSA informs the Member that fingerprints were sent “a few months ago” to Interpol. However, it had been reported at a hearing 18 months earlier that fingerprints had in fact been sent to Interpol in 2013.
Over time, inaccurate statements by
CBSA officers can become accepted facts that are repeated in decisions, even where these “facts” are contradicted by earlier decisions that are contemporaneous to the events at issue. For example, in a 2015 decision, a Member rejects
CBSA submissions that the detained person had recently refused to sign travel documents or had not been cooperative in that regard.Footnote 47 However, a few months later, a second decision relies on renewed submissions from
CBSA that the detained person caused delay by refusing to sign a travel document. The detained person’s own explanation of the delay with the travel document (which is consistent with the finding in the earlier decision) is not taken into account or even acknowledged in the second decision. A few months later, yet another decision states that the detained person caused delay by refusing to sign the travel documents.
The danger of uncritical reliance on
CBSA submissions about non-cooperation has specifically been identified in several court decisions.Footnote 48 In
Brown, the Ontario Superior Court commented on
CBSA evidence before the Court (and previously before the
ID) that Mr. Brown had hindered his removal process by not providing information about family members in Jamaica. The Court accepted the evidence of Mr. Brown that he had no known family in Jamaica, noting that it could not have constituted a failure to be cooperative if Mr. Brown was unable to provide information regarding his family because he simply did not have that information.Footnote 49
Failure to Hear Evidence from the Enforcement Officer or Investigator in Appropriate Cases
The difficulties that arose in relying on statements by the
CBSA Hearing Officers could have been addressed in some instances by requiring the
CBSA investigator or Enforcement Officer to attend and give sworn/affirmed evidence. While not necessary in most hearings, notably this did not happen at
any of the hearings reviewed in the audit. This was true even when the Hearing Officer was clearly not conversant with the relevant facts relating to an extensive identity investigation. This was very different from what would happen in other administrative justice hearings if a party was unable to present relevant information on key points. When the
CBSA Hearing Officer could not answer questions posed by the Member, the Member did not adjourn to allow the Enforcement Officer to attend to answer questions, and be cross-examined by the detainee (or their counsel if represented).Footnote 50 Instead, the pattern was for the Member to muddle through relying on vague statements to justify continued detention.
The Federal Court in
Brown cites the ability to call the
CBSA investigator or Enforcement Officer as a witness as one factor that mitigates against a finding that the detention review process is contrary to the
Charter.Footnote 51 The Ontario Superior Court makes the same point in considering Mr. Brown’s habeas corpus application: Mr. Brown has the right to cross-examine on
CBSA-led evidence.Footnote 52
The reality is quite different. Although enforcement or investigation evidence was a contentious issue in many hearings reviewed, the possibility of calling the Enforcement Officer was never raised by the Member for consideration by detainee or counsel. There were instances where unrepresented detainees claimed at their hearings that the Hearing Officer was inaccurate in reporting steps taken in the investigation. The Member, instead of responding by asking if the detainee wished to have the investigator give evidence and be questioned, simply ignored the objections of the detainee. One unrepresented detainee specifically asks for the investigator to come to the hearing, but the request goes unanswered.
The right of the detainee to cross-examination is not the only issue. The absence of direct investigation evidence, particularly in complex identity cases where inquiries are being made on a number of fronts and in different countries, undercuts the reliability and accuracy of the factual findings.
Failure to Allow Detained Person to Hear and Present Evidence
This was a significant problem in the Central Region hearings reviewed in the audit. As discussed briefly above,Footnote 53 the practice until 2017 was that potential bondspersons were not allowed to testify in the hearing room. Instead, they were interviewed outside the hearing by the
CBSA Hearing Officer, who would then report on their circumstances and summarize their statements. The detained person did not have an opportunity to hear the evidence or ask questions of their own witness. The Members also denied themselves the opportunity to hear examination and cross-examination, and in doing so, failed to fully and independently consider the proposed alternative to detention. Proposals for release were then often rejected on the basis of unanswered questions.
In one example, counsel put forward a potential bondsperson for a person who had been in detention 12 months. In conformity with the practice in Central Region, the would-be bondsperson was questioned outside the hearing room by the
CBSA Hearing Officer who then reported on the answers in the hearing room. In the decision rejecting the release plan, the Member relied on a number of unanswered questions about the bondsperson that might have been answered if she had been allowed to testify.
Two months later, in the same case, another release plan was put forward with a different potential bondsperson. This plan included a cash bond and a place to live. Again, the Member – a different Member – did not bring the potential bondsperson into the hearing room to answer questions.
CBSA questioned the bondsperson in the hall and reported back. The proposal was rejected for lack of information. The decision stated: “I have no information on the assets of the bondsperson. I do not know if she owns a house … We do not know how much money she has in savings, and I do not know if she has any assets or liabilities.”
The next month, yet another plan was put forward, with two different potential bondsperson. At this hearing, the detained person was no longer represented by counsel. She had now been in detention for 15 months. The new plan included a cash bond, a place to live, supervision, and for the first time, according to the detainee, a substantial performance bond offered by her brother. The family Members putting forward the proposal were at the hearing location. The Member had many questions about the basic details of the plan, but she did not bring them into the hearing room to answer her questions. Instead she accepted the information provided by the
CBSA Hearing Officer who interviewed them outside the hearing room.
In rejecting this plan, the Member questioned whether a performance bond was really being offered and whether the brother was sufficiently familiar with the detained person’s history. The decision relied on these unsolved questions to reject the release plan. When the detained person objected to the fact that she was not allowed to hear her brother’s answers to the Hearing Officer’s questions, the Member simply told her that the Hearing Officer would not lie.
Importantly, the family Members did not hear directly why their plan was rejected and for that reason there was less likelihood that they would return with a better plan. And of course there was no opportunity for them to clarify and improve their plan in giving evidence in the hearing room that day.
This person was held for another 15 months before a very similar proposal from the same family Members was accepted.
In our sample, it was not only bondspersons who were not allowed to testify on behalf of a person in detention. At one hearing in Central Region, the lawyer for a detained person had arranged for a witness to be available to testify by telephone. The witness was the director of a residential facility and was to testify about the programming and services that would be available if the person was released to the facility. The lawyer had arranged for telephone equipment in advance of the hearing and repeatedly requested that director be connected and allowed to answer questions at the hearing. The Member turned this request down and then rejected the proposal based on assumptions and unanswered questions about the adequacy of supervision, the appropriateness of programming and whether the institution would be able to deliver the young man to upcoming
ID hearings. At the next 24 hearings, the young man was unrepresented and no further release plan was presented.
In not allowing counsel for the detained person to present evidence at the detention review, the
ID Member failed to comply with a basic tenet of procedural fairness and effectively sealed this young man’s fate. Had he been released, he would have at least had the opportunity in the many months before his
IAD hearing was completed, to try to prove that he could live successfully at the institution, to perhaps complete its various counselling programs and catch up on his schooling, all opportunities not available to him in provincial jail. He might have been able to present evidence of rehabilitation to
IAD. Instead, he was deported to one of the most dangerous countries in the world, a country where he had not lived since early childhood and where he had no family and did not speak or write the language.
The failure to allow a party to present evidence and to hear and question witnesses, is a fundamental breach of natural justice. The Federal Court in
Brown has recently emphasized this. Citing
Charkaoui,Footnote 54 the Court stated:
Before the state can detain people for significant periods of time, it must accord them a fair process. This basic principle has a number of facets. It comprises the right to a hearing. It requires that the hearing be before an independent and impartial decision-maker. It demands a decision based on the facts and the law. It entails the right to know the case put against one, and
the right to answer that case.Footnote 55 (Emphasis added)
It would be useful for the
ID to issue a Practice Direction to clarify that both parties have the right to present
viva voce evidence at detention review hearings and are encouraged to bring forward their best evidence. The case above may have been an exception but if some
ID members have tended to discourage counsel from leading viva voce evidence, this could have had an impact on practice before the
To my knowledge, there are no judicial review or
habeas corpus decisions dealing with a situation where a detained person was prevented from presenting evidence. However, the Federal Court has commented negatively on an
ID decision denying a
CBSA request that an absent bondsperson to be brought to the hearing for cross-examination, finding that the “failure to allow cross-examination effectively denied the applicant [CBSA] the right to test the evidence” in support of release.Footnote 56 It is safe to conclude that if, for example, the Federal Court in
Brown had received affidavit evidence of instances where a detainee’s witness had not been allowed to testify, it would have identified this as a potential problem of “maladministration” that would undercut the fairness of the detention review process.
I note that this may be an ongoing issue in hearings that are conducted in correctional institutions if witnesses, including bondspersons, are not allowed into the institutions and are instead questioned outside the hearing rooms and without the detained person being present.
Failure to Question
CBSA on Delay
In long term detentions, there were many examples of
CBSA-caused delays that were seldom the focus of questioning in review hearings or remarked upon in
ID decisions. For example, in one case, the detained person agreed in writing in 2012 (and earlier gave oral permission) for
CBSA to publish his photograph in a media release with the goal of finding relatives. Due to delays within
CBSA itself and perhaps at the Ministry of Public Safety and Emergency Preparedness, the media release did not come out until two years later. In fact, the media release did not go to the countries where he had possible citizenship until 2016. Members were not persistent in asking questions about this delay. Decisions repeatedly found that
CBSA was diligent or even “extremely diligent”. Notwithstanding this incredible delay, successive decisions rely on
CBSA submissions that the reason for delay in obtaining travel documents is the detainee’s “complete lack of cooperation”.
At one hearing in this file, after 5 years of detention, the only new information presented by
CBSA was that the Enforcement Officer had re-interviewed the detained person two months previously. At the next hearing, no new information was presented by
CBSA. In answer to a question from the Member about next steps, the Hearing Officer stated that he did not know but would be able to ask the Enforcement Officer when he next went to the office. He told the Member that the investigation might take years longer. Nonetheless, the decision stated there was no reason to decide differently from previous decisions and that
CBSA had been diligent.
Very surprisingly, at the following hearing, the decision was not critical of
CBSA even though the only new information provided was that the Enforcement Officer had succeeded in removing another detained person who had been held for 10 years, freeing him up to devote more resources to this case. The decision found that there was “hope” for removal because the same investigator had successfully deported someone else. The Member held that
CBSA continued to pursue removal diligently.
A 2016 decision in the same case relied in part on a linguistics analysis in concluding that
CBSA was diligently pursuing removal. The Member did ask about timing and may not have been aware that the linguistic analysis had taken place in 2012.
In this case, what can only be described as a stalled investigation was repeatedly relied upon as evidence that
CBSA was taking appropriate and timely steps to obtain travel documents. In hearing after hearing, the
ID Members failed to ask probing questions of
CBSA and failed to even require
CBSA to address the fact that years were passing with no apparent end in sight. Not surprisingly, on more than one occasion, the detained person walked out of a hearing in frustration, saying that he wouldn’t attend again until
CBSA had something new to report. He was unrepresented.
Barriers to Participation of the Detained Person in the Hearing
Detained individuals who were unrepresented had difficulty participating effectively in the hearings reviewed. Most basically, they had to rely on their memory of what had transpired at previous hearings – only once or twice was a person handed a copy of the previous decision by a presiding Member. Just as Hearing Officers and Members had difficulty keeping track of the evidence and findings over the course of a long detention, those in detention were often confused about what had transpired and why. If counsel came on the record, the first request was usually for a full package of decisions.
Inaccessible language was sometimes a barrier for unrepresented parties. For example, it appeared from the hearing transcripts that a newly detained person would sometimes not understand that they might need to find a bondsperson and develop a proposal in order to be released. Sometimes they would ask directly about how they could be released at their second or third hearing. The Member might have referred previously to “alternatives to detention” in remarks at the hearing but the phrase did not appear to be meaningful to newly-detained individuals who were unrepresented.
Although in our sample disclosure of written materials was generally provided in advance of the hearing, with one notable exception,Footnote 57 sometimes it would happen only a few minutes before the hearing began. If the materials were complex (such as, for example, police records), the unrepresented person would not necessarily be able to decipher the contents and make submissions.
As well, there were several instances when new information was given orally at the hearing and an unrepresented detainee had difficulty responding. In the hearings reviewed, a detained person would sometimes interrupt
CBSA submissions to object to information being presented, but he or she would be asked to wait for their turn. The Member would rarely prompt the person to return to that point when given the chance to speak. Without the assistance of counsel, whatever point the detainee wanted to make would often be lost.
A related issue is that Members would sometimes include statements of fact in their decisions that were not part of the evidence or submissions of
CBSA at the hearing, or part of the findings in previous decisions. The detained person would then have little or no opportunity to contest the finding. At times, it was not clear where these new facts came from.
In one example, a Member, in delivering his decision, stated that a detainee “disappeared” after being released four years earlier.
CBSA had not made submissions to that effect and the unrepresented detainee objected mid-decision, stating that she had reported as required consistently after her release. The Member stated that he was just relying on the previous decision and continued to deliver his decision. In fact, the previous decision held that she was a person
who would report as required. The person in detention did not have a copy of the previous decision.
An apparent failure on the part of the
ID to turn an open mind to the testimony and submissions of the detained person has been commented upon critically by the Ontario Superior Court.Footnote 58
In our sample, Members rarely took time to explain the key issues in plain language at the beginning of the hearing or to use other active adjudication tools to level the playing field for unrepresented detainees, such as by questioning both the person and
CBSA, to ensure that all the relevant evidence came forward. Members did not often take the initiative to direct the person to areas where their evidence could be helpful.
Moreover, it seemed that statements made by the detained person in the hearing were not always treated as evidence: not taken under affirmation or oath;Footnote 59 not tested by questions from either the Member or
CBSA; not assessed for credibility in the decision. In particular, the failure to provide the detained person with the opportunity to give affirmed evidence devalued their participation. Taken altogether, the result was that hearings could seem
pro forma, and the decision a foregone conclusion. In some cases, the manner in which hearings were conducted, and decisions rendered, discouraged unrepresented people from participating after the first few hearings.
Although we reviewed many hearings where the Member treated the detained person with respect, sometimes the detained person was treated like less than a full participant. In one case, a Member told the detainee at the beginning of the hearing that she would get a chance to add her “five cents worth”. Members would often tell the detained person that he or she would be able to “add something” after
CBSA is finished. It was rare for a Member to communicate clearly that it was the detained person’s hearing and that the Member wanted to hear from them, including in response to
CBSA submissions. At the beginning of most hearings, the Member told the detained person that, in the absence of counsel, they could choose to not say anything. Given that in the vast majority of hearings reviewed, the detainee was unrepresented, the invitation to remain silent could seem to encourage non-participation in the absence of a clear statement from the Member that the person’s evidence and submissions were important to a fair and full hearing.
It was not unusual in the cases reviewed, for the detained person to become frustrated with the process; to stop speaking at hearings or to stop attending at all, sometimes for months at a time. These hearings would often be completed in five minutes or less. The failure to attend would then sometimes be cited in subsequent decisions as an indication that the person was not cooperating, did not respect the process and was therefore a flight risk. Even interruptions by the detained person during the hearing were commented on at hearings as an indication of lack of respect for immigration law and supportive of a finding of flight risk.
Brown, the Ontario Superior Court took a contrary view, commenting that: “Any frustration expressed during the review hearings was quite understandable given the protracted nature of the removal process”.Footnote 60 The Ontario Court of Appeal has also commented that a failure to attend review hearings after months of detention should not be held against an unrepresented detainee as a sign of non-cooperation that favours continued detention.Footnote 61
Need for Active Adjudication in Consideration of Alternatives to Detention
Many tribunalsFootnote 62 have adopted active adjudication tools to ensure an efficient and balanced hearing process. Active adjudication is particularly helpful when there is a power imbalance between parties, including when one side is unrepresented, as in many
ID hearings. It is beyond the scope of this report to discuss the elements of an active adjudication practice but for a thorough outline with useful examples, see Michelle Flaherty, Best Practices in Active Adjudication.Footnote 63 Today, even the courts generally do not hesitate to ensure that the necessary evidence is brought forward by questioning witnesses and identifying gaps, particularly when a party is unrepresented.
In the cases reviewed by the audit, there was a pronounced need for a more active adjudication approach in the assessment of alternatives to detention. Under section 248(e) of the
IRPR, the “existence of alternatives to detention” must be considered at every detention review before a decision is made on detention or release. However proposals were sometimes rejected without full and fair consideration, often on the basis of missing information that could have been provided, if not immediately, then at a subsequent hearing.
In fact, the process itself, specifically the rotation of Members, discourages active adjudication of options for release on the part of each successive decision-maker. In our cases, when a Member found that a proposed plan was inadequate, the Member did not spend time clarifying how the shortfall could be addressed and the plan re-presented. Because Members were rotated through cases, they did not become engaged with a particular case in a way that might facilitate a resolution and a better result for the detained person. Even the reasons for rejecting the proposal were not readily accessible to a subsequent decision-maker unless the decision had been transcribed.
In Ontario, the problem is compounded by the fact that legal aid-funded lawyers are generally only able to appear once or twice to present a release proposal. If the proposal is rejected, the lawyer will not generally be funded to try again.
The need for a more pro-active and focused approach is illustrated by one of the cases in our sample. In this case, after more than one year of detention, a release plan was rejected based, in part, on a questionable interpretation of a letter written by the community agency. Because the letter referenced counselling services and other programming to help the detained person “re-integrate” in society after release from jail,
CBSA argued, and the decision found, that the reference to “re-integration” meant that agency did not fully appreciate that the individual was subject to a deportation order. The Member also questioned why the letter did not specifically state that the agency would report breaches to
CBSA and questioned whether the agency’s director was politically opposed to immigration detention in general because of public remarks attributed to him by the Hearing Officer.
Counsel for the detained person submitted in response that the agency had considerable experience supervising individuals released from immigration detention pending removal; he could point to two instances where it had reported a failure to comply to
CBSA. The release plan included housing, counselling for trauma, social worker support, family support, employment training and both a cash and a performance bond.
The Member rejected the proposal. She did not tell the parties, as she could have, that she would like to hear
viva voce evidence from the agency in respect of her concerns, although she did suggest that perhaps another letter could be prepared for a subsequent hearing. This was an opportunity for the Member to clarify what was needed, to adjourn the proceeding if time permitted or to ask to be re-assigned to the next hearing. The Member could have requested that the agency director attend the next hearing and could have suggested that
CBSA work with the lawyer to improve the proposal.
None of this happened and the individual was not released until 3.5 years later. However, when the individual was finally released, it was based on a very similar proposal - the same community agency providing counselling and program support - with the primary difference being that the main supervising agency was the Toronto Bail Program. By the time this gentleman was released, he had suffered a catastrophic mental health breakdown in detention. The failure to give this proposal fuller consideration cost this person dearly.
There were a couple of instances in our sample where Members in Western or Eastern Region adopted a more active role in trying to encourage the detained person and
CBSA to develop a plan that would support release. This was not unlike the mediation or mediation-adjudication role that many tribunals have adopted to facilitate parties in finding early and effective resolutions. What is needed, at minimum, is for a Member to be seized with or reassigned to a file in these circumstances so that he or she can facilitate release by clarifying and fine-tuning expectations, putting pressure on both parties to find acceptable solutions.Footnote 64
Instead, detainees were sometimes met by inconsistent expectations at successive hearings. A case in our sample illustrates this. A family-based release plan was rejected based on
CBSA submissions that the family would not be able to provide sufficient supervision, and that the young man needed a residential placement outside of the urban setting where his crimes were committed. The decision suggested addiction counselling should be part of any future proposal, stating that the person was “likely addicted to [cocaine]”.Footnote 65
The detained person was represented by Ontario’s Refugee Law Office. Two months later, the lawyer brought back another well-prepared proposal that addressed all the issues identified by the earlier decision. This plan, presented to a different Member, included a highly supervised institutional residential placement in a rural area, which included addiction and anger management counselling, as well as educational and vocational programming.
CBSA was concerned about the separation from his family and argued that the institutional focus on addiction counselling was not what the detained person needed. The Member agreed, finding, in contradiction to the earlier decision, that “there is no suggestion that [the person] has a drug problem and that is the main focus of this particular facility”. In rejecting the second proposal, the decision also stated that the rural setting might make it easier for the person to leave without permission.
In this case, the
ID’s expectations changed from one hearing to the next, without the Member at the second hearing seeming to realize this. The problem could have been avoided if one Member had been assigned and had taken an active role in ensuring that all the relevant evidence was brought forward and considered.
The detained person never got a chance to try to address the gap in the two sets of expectations. This was the last time he was represented by counsel and the last time a release plan was put forward. He was held for another 21 months before being deported but rarely said anything at any of his subsequent hearings, only occasionally expressing his frustration. This was, in effect, his final opportunity to be released.
Failure to Decide Afresh
The requirement to bring a fresh mind to each detention review hearing has long been emphasized by the courts:
Thanabalasingham; Panahi-Dargahlloo.Footnote 66 What may be relatively new is a recognition by the courts that some features of the process can mitigate against meeting this requirement.
The comments of the Alberta Court of Appeal bear repeating:
The statute contemplates that
ID reviews occur frequently in a timely manner. It is an administrative process, with a focus on the factors for detention set out in the regulations.
However, the serial nature of the reviews, the role of the reviewing officer, and the deference given to earlier review decisions can lead to
ID decisions becoming cumulative, without constituting a fresh review of the legality of the detention. The statutory conditions for detention and the nature of the review also tend to limit its scope.Footnote 67 (Emphasis added)
In dozens of hearings reviewed in the audit, the
ID Member seemed unable to bring a fresh mind to the factual circumstances, even as years passed. In some cases, there were missed opportunities to take a fresh view of the factual record. Perhaps the criminal record had become dated and the person’s conduct in detention was not problematic. For example, we read 2016 decisions finding a person to be a danger to the public based primarily on convictions with minor sentences served more than 10 years previously; we read 2017 decisions that relied on a danger opinion from 1995. These were not the only grounds for ordering continued detention in these decisions, but these very old events were part of the rationale, without sufficient consideration of the impact of the intervening years.
With respect to flight risk, at some hearings, new facts were presented that offered a possible basis for finding that the risk of non-appearance was lower. Perhaps there was a new positive first-level PRRA decision, giving the detained person incentive and hope. Or the flight risk might be mitigated by the detained person’s long-standing close family ties and her testimony about her family circumstances. In our sample, there were situations like this – a grandmother who wanted to be with an ill daughter, for example - where detention had gone on for years, and yet the decisions did not seem to wrestle with the passage of time, the evolving circumstances and the enormity of the
ID’s responsibility in continuing to deny the person their liberty.
In the longest detention reviewed, a kind of tunnel vision seemed to take hold, with
CBSA insisting, and the
ID finding, over 7 years, that the detainee had demonstrated a “complete lack of cooperation” in securing identity documents.
The record told a different story. While his statements were sometimes inconsistent and confusing, the basic facts remained unchanged from his first detention hearing. He had never had birth records or citizenship papers and had been moved as a child from country to country with false documents. He had lost touch with family member over many years of substance abuse. In order to assist in establishing his identity for removal purposes, he agreed to be interviewed on several occasions by both countries in which he had lived as a child; he underwent a linguistics analysis; he agreed to a world-wide media release and to have his fingerprints and photograph sent to countries around the world through Interpol. Yet repeatedly the
ID decisions accepted the
CBSA submission that continued detention was justified due to his failure to “come clean”.
The efforts of
CBSA to prove that the detained person was untruthful seemed to become increasingly bizarre. For example, an investigator was sent to one African country to look for a religious elementary school; another investigator went to another African country to look for people at a university in the capital who might remember the detainee’s father, who had been dead since 1992. The investigator interviewed numerous officials at the university because the detainee remembered that, when he was a child, his father sold soap on the campus. The detainee had not lived in either country for over 40 years. At one hearing, the Member recognized that these efforts were not likely to be fruitful. However, at no point was this detention found to be indefinite.
In spite of passing years and evidence of cooperation by the detainee, the
CBSA maintained, and the
ID repeatedly found, that the detainee was the sole cause of his own continuing detention, principally because he refused to provide contact information for relatives with whom, he maintained, he had lost contact due to years of substance use.
ID Members refused to believe that he was telling the truth even as he clearly became increasingly desperate and proved himself even willing to acquire a false birth certificate to get himself out of detention and out of Canada.Footnote 68
Out of the approximately 90 detention review hearings for this individual, there was only one hearing where the
ID Member clearly made an independent assessment of the facts of the case and declined to find that the issue was non-cooperation. After approximately 9 months of detention, the
ID Member doing the review reassured the detained person that he would not be held indefinitely.
The following is an excerpt from the oral decision:
I am continuing your detention with some reservations. I’ll make my reservations very clear right off the bat. I’m not going to depart my colleagues’ decisions on likelihood of appearing and danger at this point . … However that needs to be looked at in a number of contexts. One of the contexts that we have to look at is the length of past detention and the length of future detention. At this point, your detention started in February and that’s a relatively long time. The problem that I have today, and I’m expressing that clearly so that all parties know the issue, is the possibility of removal. Now you were returned to Ghana once; they didn’t take you back. That scenario seems to be a dead one ….The Minister is looking at removal to Nigeria. That’s legitimate. … Nigerian officials have said because of the circumstances, they need something from your mother. I don’t see that this is an unreasonable requirement…... Minister hasn’t been able to do that at this point. …..
CBSA are going to talk to the Nigerians, see what they might do at this point, knowing that your mother can’t be found. At this point, I’m willing to give the Minister a bit more time to see what the Nigerians say…..
But, and this is a big but, someone cannot be held in indeterminate, indefinite detention. If it looks like the Nigerians aren’t in a position to issue you a document, then your continued detention would be indefinite; it would be contrary to the Charter. The government needs to comply with the Charter. In those circumstances, a Member might well decide that, to avert a Charter breach, release would need to be offered to you. So that is something Members will have to look at closely in the future.
I am not necessarily going to be hearing your case soon or at any point again. But my notes will be in the file and my expectation would be that Members in the future will take the Charter into account…... If detention is starting to be too long or indefinite, then both danger and likelihood to appear would have to be taken in to account with a release order with suitable terms and conditions. Immigration will have to take steps. There will have to be some movement on this. You can’t be held in indefinite detention. …. If Minister comes back next hearing and says we haven’t done anything, well if I was the Member at the next hearing, then I would say that today is the day for release. You are being detained today but don’t worry, Members are going to carefully look at this and if release is the route to go, then that is what will be done. But we can’t do this today.
This particular Member never was assigned to this file again; he may have left the
ID. At two subsequent hearings, three and five years later, two different
ID Members questioned the
CBSA’s theory that the detainee was refusing to cooperate, but retreated from taking a different view of the facts. At one hearing, the presiding Member asked
CBSA what he called a “rhetorical question”: “what if it is true that he does not know” the information he is being asked to provide. About 18 months later, another Member asked
CBSA: “What if he has told all he knows?” He was held in detention for another 14 months after that particular hearing, until the Ontario Superior Court held that he had provided the same relevant details from the beginning, and had cooperated to a reasonable extent.
The Court found the detainee’s evidence before the court to be credible, and having listened to tapes of almost all the
ID hearings, I came to the same conclusion with respect to his testimony before the
ID, based on its overall consistency with the person’s history and the facts of the case.
What happened in this case, over 7 years, is that the
ID failed to bring a fresh and independent perspective to the evidence. Instead Members accepted a narrative urged upon them by the
CBSA was vehement in disparaging the credibility of the detained person and this seemed to prevent the Members from seeing several markers that indicated truthfulness.
Three times only, a Member put forward another possible interpretation of the facts, but in the face of a strident
CBSA response, two retreated from making a fresh evaluation of the case. This is precisely the problem identified by the Ontario Superior Court in
This improper reliance on the
CBSA and its frequent undermining of the independent decision-making authority of the
ID Members is what makes it nearly impossible for Mr. Scotland to have his point taken seriously. …. This delegation of authority to the enforcement agency who is a party to the case against Mr. Scotland provides a graphic illustration of improper self-judging”.Footnote 69
Over-Reliance on Past Decisions
The fact that Members have the authority to reverse previous decisions is cited by the Ontario Superior Court in
Brown as an important factor in ensuring
Charter compliance.Footnote 70 The Court stated: “… where members are not satisfied that grounds for detention continued to exist or that the circumstances otherwise warrant the grant of release, they can depart from previous review decisions to continue detention as long as they provide their reasons for doing so.”Footnote 71
However, in our sample, the tendency to rely routinely on previous decisions was evident in many cases, particularly after the initial three or four hearings.
As the Ontario Court of Appeal noted in
Chaudhary: “previous decisions become highly persuasive at the very least” and “… as the length of detention increases, it becomes more and more difficult to argue that an additional 30 days spent in detention since the last review constitutes a “clear and compelling reason” to depart from the earlier disposition”.Footnote 72
The Ontario Superior Court has similarly commented on the difficulty of “displacing” previous decisions:
In effect, once a decision to detain is rendered at the first detention review, for all practical purposes, the
CBSA has met its burden, and at every subsequent detention review, it is difficult, if not impossible, to displace the initial decision. Each
ID decision, even if later proven to have been based on faulty information, gets relied on and replicated the next time around.”Footnote 73
Because of the characteristics of the sample of decisions reviewed – all detention hearings where the person had been held for more than four months - it was not surprising that in almost all decisions, the Member expressly declined to come to a different result than past decisions. Almost every decision would include the statement: “There is no reason today for me to depart from the prior decisions” or “Clearly nothing presented at this hearing would give me reason to decide differently from my colleagues”.Footnote 74 The decision of the Federal Court of Appeal in
Thanabalasingham was often cited as restricting their discretion to change course without “clear and compelling reasons”.Footnote 75
Not departing from prior decisions often made sense, of course. At some hearings, for example, there were serious public danger issues and no proposal for release. Sometimes
CBSA was simply waiting on a travel document that was expected shortly.
At many other hearings, however, the passage of time made reliance on past decisions problematic, particularly in cases where the accepted narrative contained inaccuracies. Decisions would fall back on a recital of facts from months previously, or state that there was no need to repeat facts cited in previous decisions. Sometimes Members would explicitly rely on their own previous decision(s), even years earlier, in the same case.
Does the decision in
Thanabalasingham require the
ID to follow previous decisions as rigidly as many
ID decisions suggest? In several subsequent decisions, the courts have clarified that it does not.Footnote 76 In fact, in
Thanabalasingham, the Federal Court of Appeal upheld an
ID decision that declined to follow previous decisions because the Member re-assessed the overall credibility of the evidence that had supported previous detention orders.Footnote 77 The Court clarified that, “the subsequent decision maker must give a clear explanation of why the prior decision maker’s assessment of the evidence does not justify continued detention”, but also gave examples of when this might be appropriate, such as when new evidence was admitted or when the decision maker made a “reassessment of prior evidence based on new arguments”.Footnote 78
Thanabalasingham decision even suggests that sometimes reasons will be acceptable even if not fully explicit as long as the decision addresses the prior reasons in a meaningful way. The decision states:
However, even if the Member does not explicitly state why he or she has come to a different conclusion than the previous Member, his or her reasons for doing so may be implicit in the subsequent decision. What would be unacceptable would be a cursory decision which does not advert to the prior reasons for detention in any meaningful way.Footnote 79
Significantly, from the Court’s decision in
Thanabalasingham, it does not appear that the
ID decision was based on new evidence or even new arguments on behalf of the detained person. Instead, it seems that the Member took the initiative himself to reassess prior evidence that he found to be unconvincing, and then came to a different conclusion as to where the evidence led. This is important because, at the many hearings where the detainee is unrepresented, a Member is not likely to hear a cogent new argument that reassesses the evidence in a “clear and compelling” way.
In this way, the decision is
Thanabalasingham not only supports the principle that Members can come to a different conclusion based on a careful reassessment of prior evidence, but also supports an active adjudication approach. If the goal of every hearing is a fair result based on the true merits and justice of the case, as it must be, then it is incumbent on Members to actively assess and reassess the evidentiary record before them, particularly in light of the passage of time.
Fairness Issues for Detained Persons with Mental Health Problems
The audit reviewed three files with very long periods of detention where the detained person had significant mental health issues. There were extra barriers to release for these individuals.
In these files, like the cases with substance abuse issues, a recurring issue for the detainees was the lack of treatment and counselling services in provincial correctional institutions. It is very difficult to demonstrate rehabilitation as a factor supporting release if there are few, if any, rehabilitative programs available to you. This is an issue that has been noted by the courts.Footnote 80
In only one of these cases, in Eastern Region, was the person represented by experienced counsel at all his
ID hearings. His lawyer tried over many months to arrange for a renewed psychiatric assessment that might assist in determining what kind of release plan would be appropriate. The
ID Members hearing the case were not unresponsive to this dilemma. At least one decision indicated some frustration with the lawyer’s predicament and noted that the lack of up-to-date psychiatric evidence was an impediment to release. After 3.5 years of detention, the person was released under a comprehensive plan that included counselling and specialized therapy.
By way of contrast, in a different file in Central Region, the Federal Court ordered
CBSA to arrange a psychiatric assessment of a detained person. In addition, the Federal Court stayed deportation on at least two occasions because it concluded that the detained person’s mental health issues needed to be properly addressed before removal. This person had counsel for only 2 of the 44
ID hearings that were reviewed.
There were many issues in the hearings reviewed in this particular file. The detained person was held for 41 months in Central Region and for 14 months in Eastern Region. At his very first hearing in 2012, the Member noted that he had been reporting to
CBSA regularly before missing a pre-removal interview. He explained at one of his hearings why he had inadvertently missed the interview but there were no findings made about what had transpired. Despite a troubled background in his country of origin, at the time he was apprehended by
CBSA, he was in counselling, receiving treatment at the Centre for Victims of Torture, volunteering at a community agency and involved with his child.Footnote 81
At this first hearing, he was held as a flight risk on the basis that he was afraid of returning to his country, as well as on the basis of public danger. At a hearing two months later, his strong family ties (ex-wife and child) in Canada were included as a flight risk factor. At a hearing after 5 months of detention, a decision noted his “good behavior” since 2012 and that his “serious convictions are somewhat dated.” The record showed that his last “serious conviction” was for attempted robbery in 2007. At this hearing, the decision stated that 5 months is a long detention and suggested that he develop a release plan. The next decision also suggested a release plan.Footnote 82
These early 2012 decisions are notable because he is held another 4 years and later decisions take a revisionist view of both flight risk and public danger. Decisions in 2016 rely on public danger as the primary reason for detention. The change in assessment is not because of any intervening actions on the part of the person in detention. As time goes on, Members begin to view the past convictions more seriously, and this gets repeated as new decisions rely on previous decisions.
This person suffered a complete mental collapse after 16 months in detention when his humanitarian and compassionate application was refused. He stopped talking and became unresponsive to any interaction for the next 3 years of detention. He stopped attending hearings but is described at hearings as “immobile”. He is eventually diagnosed as catatonic. During this period, his mental health situation is increasingly cited in decisions as demonstrating that he would be a flight risk and a danger to the public if released.
For almost two years after his mental collapse in detention,
CBSA submissions and the
ID decisions barely acknowledge his mental health issues. Although at one hearing,
CBSA describes him as “mumbling incoherently”, at another hearing, the Hearing Officer describes his conduct as a “passive protest”. In many decisions over this period, Members characterize his behavior as non-cooperative, finding that he is “obstructing the removal process in a very extreme way”; “not willing to attend”; “has chosen not to participate in this hearing”; “is refusing to cooperate”. In other decisions during this period, Members acknowledge that there are “cognitive issues” or “strong indications that he is unable to appreciate the nature of the proceedings”.
After several months, a Designated Representative (DR) was appointed. The DR attended the next 23 hearings; at one hearing, he reported that he had been unable to communicate at any point with the detained person. There was no indication at any of the hearings that the DR ever contacted the detained person’s family members or the lawyer representing him in Federal Court. At each hearing, the DR stated only that he had no alternative to detention to offer. The hearings are less than 5 minutes in length. At no point does the DR argue that the detained person is no longer a danger to the public or a flight risk because he is immobile, passive and non-verbal.
The presence of the DR seemed to give the
ID Members the assurance that all was in order but meanwhile the detained person had never spoken to the DR and was being held in a catatonic state, off his medication and without proper treatment. The one time he was brought into the video room for a hearing, he seemed unaware of his surroundings and just put his head down on the table.
At one hearing, 40 months into his detention and 24 months after he became catatonic, a decision finds that detention has been “somewhat lengthy” and raises the possibility of a treatment facility as an alternative to detention. In mid-2015, he is finally transferred to a correctional institution in Eastern Region that has psychiatric treatment services. His counsel later reports that the transfer was in response to a direction from the Federal Court.
Once the file was transferred to Eastern Region, a new DR was appointed who took active steps to rally his family, legal and community supports. The detained person started to receive psychiatric treatment. At one hearing, a Member asked about transfer to the non-correctional psychiatric hospital on the same hospital grounds. Another Eastern Region Member noted that Central Region was aware of his mental health collapse for 8 months before a DR was appointed.
At this point, a social worker became involved and helped locate the support network that was assisting him before his detention and was part of his release proposal 2.5 years earlier. His lawyer and the new DR started to work on a new release plan. He was finally placed under the guardianship of the Public Trustee.
After the transfer, the Federal Court stayed his removal and
CBSA later offered a Temporary Resident Permit. At some point during this period, the Ministry imposed an administrative stay on removals to his country because of violence there. Arguably, it could no longer be said that he was being held for immigration purposes because he was no longer slated for removal but this is not addressed in the decisions.
What is disturbing about his detention reviews in Eastern Region is that his mental health becomes the main basis for detention on both the grounds of flight risk and public danger. Decisions repeatedly find that because he is non-verbal and virtually immobile, he cannot be trusted to report to
CBSA. This is beside the point: no one is suggesting that he be released on the streets; his social worker, DR and counsel are looking a community placement with psychiatric services.Footnote 83 When they do put together a successful plan, the TBP is given responsibility for reporting to
These decisions also make the assumption that the Canadian public needs to be protected from him because of his mental illness. The pre-2010 convictions were considered “dated” in 2012, but become renewed grounds for detention in 2016. Several 2016 decisions describe his past convictions as violent, although they were not described that way at the beginning of his detention. One 2016 decision notes that his last conviction “with violence” was an attempted robbery in 2007 but finds he is still a danger to the public. His past “crimes with violence” are taken more seriously because, in the words of one decision, “he has a medical problem that may not help in that respect”.
Throughout this period, his DR and later his lawyer argue that, as a result of his mental illness, and continuing catatonic state, he cannot be considered dangerous, whether or not he ever was appropriately considered dangerous. These arguments are completely dismissed at every hearing. When he is released, it is not on the basis that he is no longer a danger to the public and a flight risk, but on the grounds that the components of his release plan mitigate the risks. None of the decisions seriously consider the argument that he is not being held for an immigration purpose from the point at which removal is no longer being pursued.
Completely lacking in these decisions is any thoughtful consideration of the nature of his illness and his actual propensity or ability to act in a way that creates danger. There was expert evidence available to the
ID, including a Federal Court-ordered psychiatric assessment confirming his catatonic state and testimony from staff in the correctional psychiatric facility. But instead of asking for this evidence and relying on it, many decisions appeared to rely on stereotypes about people with mental illness, even in the face of testimony from his social worker and submissions from his DR as to his profound limitations.
Before leaving this topic, it is worth touching on the responsibilities of the DR. In this case, the DR in Central Region was of no benefit to the person. On the other hand, the DR in Eastern Region played an important role in communicating with family and counsel and in facilitating the development of a release plan.Footnote 84 The audit reviewed hearings in other cases in Eastern and Western Region where DRs were helpful in ensuring a fair process. In some cases, DRs identified resources to support the release of the detained person. However, in one file in Western Region, there was a four-month gap before a DR was appointed for a detained person who shared his diagnosis that he was schizophrenic and bi-polar and who was very evidently delusional.
There was also inconsistency in the roles assigned to DRs at hearings. In at least one hearing, the detained person was not allowed to make submissions on the basis that his DR was speaking for him. At other hearings, both the detained person and the DR addressed the Member.
There would appear to be a need for tighter guidelines on the role and duties of DRs, as well as a process for soliciting input on the job performance of DRs from the immigration bar, detainees and family members, as well as
ID Members. This is an area where a public Practice Direction would be useful in clarifying, both internally and externally, the responsibilities of a DR.
Rigid Interpretation of Statutory and Regulatory Factors
Section 58(1) of the
IRPA provides that the
ID “shall order the release” of a detained person unless satisfied that one of the enumerated factors is present, taking into account the prescribed factors in the
As is apparent from the discussion above, in the hearings reviewed by the audit, the primary questions considered by the
ID in making s.58(1) determinations were:
- Is the person a danger to the public
- Is the person unlikely to appear for examination, an admissibility hearing, removal from Canada or at a proceeding that could lead to the making of a removal order by the Minister?
Many decisions seemed to adopt a formulaic approach to the exercise of discretion under the legislation and regulations, fettering the ability to view the evidence in more nuanced and contextualized ways. Factors were weighted against release without a detailed consideration of the particular facts in an individual situation. At some hearings, the Member seemed to have little interest in gaining more than a superficial understanding of the factual circumstances that led to the detention.Footnote 85
In our sample, people were held for years based on flight risk, even though they had a history of reporting to
CBSA and there was no evidence that they had ever tried to go underground when previously released. People were held as a public danger for years even though their convictions were dated and had all been for minor offences that received short-term sentences, with few if any other factors suggesting that they could pose a danger.Footnote 86
Scotland, Brown and Ali, the Ontario Superior Court has stipulated that
Charter compliance requires detention determinations to be based on a careful and contextualized consideration of the factual circumstances, including the detainee’s testimony.Footnote 87
Notably, in many decisions reviewed, there was little indication that, in assessing flight risk and/or danger to the public, Members were mindful of the statutory language requiring release unless satisfied that the enumerated factors were present.
Discussed below are some of the areas in which decision-making seemed to be rigid and to fail to take into account the circumstances of the individual case. The comments are grouped under Flight Risk and Danger to the Public.
Section 245 of the
IRPR sets out mandatory factors to be considered in assessing whether or not a person is “unlikely to appear” for a hearing, examination or removal from Canada. The enumerated factors at issue in the hearings reviewed by the audit included: voluntary compliance with a departure order or previous required appearance at an immigration or criminal proceeding; previous compliance with conditions of release and the existence of strong ties to a community in Canada.
To order release, it is not necessary for a Member to find that it is extremely unlikely that a detained person will not appear for removal. The balance of probability test affords the decision-maker more leeway: it provides that a detained person shall be released even if there is a considerable chance that they will not appear for deportation, as long as it is more likely than not that they will appear. In the decisions reviewed, Members rarely demonstrated that they had undertaken a true balancing of the evidence that weighed on both sides of their determination.
Strong Community Ties
In assessing “flight risk”, under s.58(1)
IRPA and s.245
IRPR, close family ties in Canada were almost invariably considered to be an important factor weighing
against release, without a careful consideration of the specific circumstances of the individual detained and the nature of the family ties.
Section 245(g) provides that “the existence of strong ties to a community in Canada” is a factor to be considered in assessing flight risk. However, as has been noted by the Federal Court, the regulatory language gives “no direction that the existence of such ties is a positive or negative factor in assessing whether someone is a flight risk.”Footnote 88 There appears to be very little Federal Court jurisprudence on this point. However, an earlier Federal Court decision considers a spousal relationship as a potential positive factor which is negated by evidence of a spousal assault.Footnote 89
In our sample, decisions would routinely cite evidence of close ties to immediate and extended family Members as a reason for continued detention. This result was devastating for the detainees, who could not understand why their pleading to be allowed to stay with supporting adult children, for example, was then cited as a factor in their continued detention. Persons in detention, without representation, would tell the Member that they wanted to be released because their immediate family needed them. They believed this will count in favour of release, probably for the reason that it shows stability in the community and no interest in disappearing.
Apart from the question of fettering their discretion, there was a second issue of fair process in these decisions. Members did not typically give the detained person an opportunity to speak directly to this issue. The Member did not explain that there was concern that close family ties would encourage the person to not appear for removal, and perhaps go underground, although that reasoning was expressed in oral decisions. The detainee was not asked to respond or given the opportunity to try to explain in testimony why their close family ties would not make them unlikely to appear. If permitted to explain, a detained person might have been able to give relevant and convincing testimony on this point.
This is another area where an active adjudication approach would support more meaningful participation in the hearing by the detained person, as well as the
ID’s ability to make its decisions based on the true merits of the case before it. Given the absence of Federal Court jurisprudence, this is also an area where the
ID could consider developing an Interpretative Guideline that would assist both parties in effectively addressing “strong ties to a community in Canada” as a factor that can, depending on the facts, weigh for or against release.
Failure to Report/Appear as a Factor
The treatment of this factor was particularly a concern in cases of long-term detention involving individuals who came into detention as a result of conduct related to substance use. In these cases, there was sometimes a mixed record on compliance with the requirement to report to
CBSA or to appear for an immigration or criminal proceedings. The detained person could point to long periods during which he or she had reported regularly when substance use was under control. But there were missed appointments, including instances where immigration appointments were missed because they were being held for minor criminal charges. In more than one file reviewed, as months and years passed in detention without drug use, the fact of a few past missed appointments or appearances, was cited as evidence of high flight risk despite release proposals involving addiction counselling.
The same observation could be made in instances where period of mental health instability seemed to be a factor. The
ID seemed to adopt a rigid approach that placed undue weight on one or two instances of non-reporting while failing to consider evidence of regularly reporting for other periods of time when health was stable. Flight risk was cited as a ground for continuing detention of individuals who had spent months and years in detention, without access to mental health or drug counselling, based on instances of non-reporting from years previously, and in spite of release plans that included counselling and other mental health supports unavailable in detention.
In assessing flight risk on a balance of probabilities, there is also a need for more thoughtful consideration of evidence with respect to the capacity or will of the individual to actually go underground. In some of the cases reviewed, significant mental or physical health challenges would have made it difficult for the person to disappear, especially with no financial resources and a history of living in a limited geographic area, with known family contacts.
Claim for Refugee Status and Pre-Removal Risk Assessment (PRRA)
In most of the hearings reviewed, the
ID placed significant reliance on past claims for refugee status and/or a PRRA application as a factor favouring continued detention. The reasons stated would be something along the lines of: “it is clear from your claim/application that you are afraid to return to your country of citizenship and this clearly supports a finding of high flight risk”.
In these decisions, the assumption was made that a person who is fearful of being returned will be untrustworthy and more likely to go underground. Decisions would sometimes cite character flaws in drawing this conclusion (“you are an unreliable person” or “you are someone who would do anything to avoid being removed”), as opposed to making specific factual findings based on past conduct.
In one case, a decision cited the detainee’s PRRA claim and humanitarian and compassionate application (and the Federal Court stay on removal pending a decision) in finding that “the chances that you will appear for removal are low to non-existent”. This finding failed to even refer to the person’s statement in the hearing that the record showed that he had reported as required for two years prior to being arrested for not reporting on one occasion. Perhaps the Member had a basis for rejecting that evidence, but the decision was silent.
The result is that individuals were punished for making a refugee claim or a PRRA application without a careful assessment of their individual circumstances. This seems contrary to public policy and contrary to good sense. Not every person who fears going back to their country of citizenship is someone who will go underground. In our sample, there were some detained persons who seemed capable and motivated to go underground, but others did not appear to have the resources or motivation.
To many detainees, holding their PRRA applications or former refugee status against them was counter-intuitive and not understood. If in a particular case, there is a basis for weighing a refugee application or PRRA application against release, at the very least, the person should be given the opportunity to address this in testimony. For example, one detainee with a positive first level PRRA decision begged for release to be with family, pointing out that she had more reason than ever to comply with terms and conditions. But instead, her fear of return (and close family ties) were used to support continuing detention on the grounds of flight risk. She might have been able to testify convincingly about why she would not abscond, notwithstanding her fear of return, if she really understood the factors that were counting against her and was given an opportunity at her hearing to address the issues directly.
The courts have commented on the fact that a pending refugee or PRRA claim should be given positive consideration as a factor favouring release.Footnote 90
Record of Past Convictions
In several hearings reviewed, past criminal convictions of a minor nature were relied upon as a primary basis for a finding of flight risk, even where the detained person had a track record of reporting quite regularly to
CBSA when released. A decision might acknowledge that the convictions were dated but nonetheless rely on those convictions as supporting a finding of flight risk. In one case, all serious convictions had occurred over 10 years previously.
At these hearings,
CBSA would argue successfully that the person had shown no respect for Canadian criminal laws and so could not be relied upon to comply with their responsibilities under Canadian immigration law if released. Too often, this submission was accepted without the
ID decision having closely examined and considered the person’s full history, including their track record in reporting to
Danger to the Public
Section 246 of the
IRPR sets out mandatory factors to be considered in assessing whether or not a person is a “danger to the public”. In the hearings reviewed by the audit, the convictions at issue that are set out in the enumerated list include: danger opinion by the Minister; conviction for an offence involving weapons; and importing a controlled substance and trafficking. Other convictions in the audit hearings that were not enumerated in s.246 include attempted robbery, theft under and dangerous driving. There were two cases that involved spousal assaults.
Public danger was a ground relied on in 50% of the detention hearings that the audit reviewed. This is much higher than the average national rate: decisions that included public danger as ground of detention constituted approximately 12% of all detention decisions in 2016 and 2017. This is probably in part because our sample only included detentions that were longer than four months; in fact, 40% of our files were cases where detention continued longer than one year. Persons held longer than one year comprised only 2% of the total number of people in detention in 2017, but there is no available breakdown of the grounds in detentions that are over one year long.
The courts have indicated a higher threshold for release is appropriate in cases where there is a history of violence. When a determination is made that a detained person is likely to be a danger to the public, the Federal Court has directed the
ID to look for conditions of release that reduce and even eliminate the risk.Footnote 91 It is not surprising that public danger was cited as a ground in a significantly higher number of cases in our sample.
What was surprising was that at many hearings, there was a great deal of discrepancy between the seriousness with which the criminal conduct was regarded in the criminal justice system and the way it was regarded in
ID decisions.Footnote 92 Also surprising was the willingness to rely on convictions from many years previously. For example, a 2013 decision relies in part on a trafficking conviction from 2004 as a public danger factor supporting continuation of a detention that is already 17 months long, notwithstanding the absence of any similarly serious convictions for several years. A history of drug use-related offences from prior to 2002 is repeatedly relied on as part of the basis for a public danger finding at hearings in 2016. Decisions in 2016 and 2017 relied on a danger opinion from 2009.
There are instances where criminal sentences were very light – a few days in some cases; or well under one year – but immigration detention continued on the basis of public danger for two, three, four or more years after completion of the criminal sentence.
Discrepancies of this magnitude raise questions of proportionality, as discussed by the Ontario Superior Court in
Scotland. The decision states:
The question, therefore, is whether the detention is too long in view of the purpose it is meant to accomplish and in view of the reason for the detention in the first place. It is proportionality that is the primary measure of the harshness of any given incarceration.Footnote 93
Ali, the Ontario Superior Court found that continued detention violated ss. 7 and 9 of the
Charter, commenting as follows:
…. As best as I can tell from Mr. Ali’s criminal record, he has spent almost twice as much time in [immigration] detention, pending his removal, than he served as punishment for all of his criminal convictions added together. This result is unacceptable.Footnote 94
While I appreciate that there are concerns about the prospect of releasing Mr. Ali, given his stated danger to the public, that danger has to be viewed in its proper context. None of Mr. Ali’s prior convictions have been so serious that they have attracted a penalty of more than a few months imprisonment. Indeed, as I noted earlier, the convictions are mostly for minor offences that are consistent with the actions of a drug addict”.Footnote 95
The question of how long is too long was rarely discussed in the decisions reviewed. A 2015 decision dealing with flight risk (and not public danger) stated:
It’s well established in case law that where there is a significant flight risk, it is appropriate for detention to continue ever for very lengthy periods. This Division has dealt with cases where persons have been detained upwards of eight or nine years and been upheld by the Federal Court with respect to
Charter concerns in those circumstances.
On the other hand, the
Ali decision responded to a Government submission that a 7-year detention was not exceptional by stating:
I do not agree. Simply put, a detention of more than seven years must be seen as being exceptional under any proper definition of that word. I note that the opposite of exceptional is usual or typical. If it is typical for Canada to detain persons for seven or more years for immigration purposes, then this country has a much more serious problem with its immigration process than is currently understood. While it may not always be a question of simply counting the days, at some point the number of days, by themselves, allow for no other conclusion.Footnote 96
ID decision, referred to above, did not provide cites for the Federal Court decisions relied upon. It is clear, however, that in Ontario at least, the Superior Court, in hearing habeas corpus applications, can be expected to order release in cases of lengthy detentions based on the kinds of minor convictions that characterized most of the hearings reviewed by the audit. How long will be considered lengthy? Of course it will all depend on the facts of the case, but based on the
Scotland decision, where detention had continued for 17 months, as well as the comparison made to criminal sentences in both these Superior Court decisions, it is safe to assume that in some cases, release could be ordered where the period of detention is months and not years.
A. Introduction: Why it matters
The recommendations that follow are informed in large part by the four cases reviewed where individuals were detained for years while hearing after hearing was marked by the deficiencies in fair process identified in the jurisprudence that framed the audit. Collectively, these individuals were held in immigration detention for 18 years.
If each hearing for these four people had been a robust review, undertaken with a fresh and independent mind, without undue deference to previous decisions or
CBSA submissions, without inconsistencies or factual errors, how much shorter would detention have been for these individuals? What if their witnesses had been allowed to testify; if their own statements were accepted under affirmation and afforded appropriate weight; if the speculative findings were avoided and the balance of probabilities test properly applied? And what if the decision-makers had been more actively engaged with the task of deciding each hearing based on the best evidence available, mindful of their responsibility to ensure that continued detention was justified for another 30 days? It seems entirely likely that a fair and robust review process would have seen each of these individuals released years earlier.
B. Overview: Re-Alignment with Statutory Mandate
The findings of the audit suggest the need for substantive reform of the way the
ID manages, conducts and decides detention review hearings. To address the issues identified, it will not be enough to, for example, simply introduce more training or revise the opening statements in hearings, although the recommendations below make suggestions in both these areas. The
ID must re-align itself with its statutory mandate from the top down.
Fundamentally, the statutory mandate of the
ID, as interpreted by the decisions that formed the framework for this audit, is to conduct, for every person in immigration detention, a rigorous review every 30 days of whether or not a further 30 days of detention can be justified. By legislating that detention must be justified every 30 days, Parliament has sent a clear message about the value of liberty denied: every decision to extend detention is of critical importance.
The other clear direction to the
ID in the legislation is the language of s.58(1) which states that the
ID “shall order release” unless satisfied that the statutory factors are present, after taking into account the regulatory factors. Release is the default position. In simple terms, the primary mandate of the
ID is to ensure that detained persons are released unless
CBSA can demonstrate that the evidence establishes one of the factors justifying detention on a balance of probabilities.
Ensuring public safety and the presence of persons for deportation – that is the mandate of the
CBSA in the detention review process. It is not appropriate for the
ID to maintain detention just because they are satisfied that there is a risk that the person will miss an appointment or commit a minor offence. There will always be some risk if, as in so many of the cases reviewed, the person has, in the past, failed to report on a couple of occasions, or has a history of mental health problems or substance abuse. But Members are required to release the detained person unless they can find that the evidence establishes that the risk at issue is greater than 50%.
In many of the decisions reviewed, the assumption seemed to be that any risk was enough risk. As long as there was a chance that the person might not appear, that justified detention. As long as there was a chance that the person would commit another theft, that justified continued detention. For the person detained, there was very little opportunity to counter this by showing evidence of rehabilitation while incarcerated. At times, it seemed like the
ID had its own “dangerous offender’ designation, without any of the safeguards of that process in the criminal justice system.
How should the
ID re-align itself with its statutory mandate? The recommendations below suggest some immediate steps that can be taken.
A first step is to adopt a much more pro-active management culture aligned with the statutory mandate. This may be a bigger shift in some regions than in others. Management needs to communicate to Members that the
ID recognizes that unnecessary detention is contrary to its mandate and that it values active adjudication that is consistent with that recognition.
To support the culture shift, there will need to be more transparency in decision-making. Right now, it could be possible for a supervisor to pick up a file in Central Region, where detention has continued for months, and find only one or two decisions, along with pages of barely decipherable handwritten forms and notes. Although it is presumed that the Assistant Deputy Chairpersons of each region listen to hearing tapes from time to time, to our knowledge, no process is in place to undertake ongoing rigorous review of the substantive quality of the reasons for decision, on a regular or spot check basis. When the detained person is unrepresented, detention review decisions take on an almost secret aspect. The oral decisions effectively disappear. Having listened to dozens of decisions, it seems that this ‘invisibility’ can have a negative impact on the quality of the reasons.
In the hearing room, basic changes can be introduced based on an active adjudication model, ensuring that:
- Appropriate weight is given to the affirmed testimony of the detained person;
CBSA is questioned rigorously where there are delays in its process;
- Hearing Officers are required to provide affirmed evidence when needed;
- Enforcement Officers are required to testify if investigation has become delayed or the next steps are not clear;
- Members demystify the process and the regulatory factors to enable unrepresented persons to give relevant testimony and made meaningful submissions;
- Both parties are directed to address the balance of probabilities test on the evidence;
- Members remain seized or are re-assigned, where appropriate, to facilitate the parties in agreeing on a release proposals or to ensure
CBSA compliance with a direction; and
- Members actively consider alternatives to detention at every hearing.
In part, what appears to be missing at the
ID is a shared tribunal culture that values excellence across the board in the conduct of fair and accessible hearings and in the quality and consistency of decisions. It seemed that each decision was viewed as a ‘one off’ and each Member saw themselves as an independent adjudicator operating outside of a shared responsibility to ensure fair process and fair results over the long term in the handling of each and every case.
Besides the ‘invisibility’ of most decisions, the absence of representation at many hearings, as well as over-familiarity with
CBSA Hearing Officers, can all serve to undermine the maintenance of a rigorous, independent decision-making role. A more robust internal culture is needed to counterbalance this and it must be focused on the
ID’s core mandate to ensure that continued detention is necessary in each case, at each hearing.
Consultation with the
ID’s stakeholder communities also has a role to play. Currently, the
ID is undertaking a review of its Guideline on Detention. The previous draft was shared in a consultation with stakeholders and it is expected that there will be further consultation on the new draft. This is a good opportunity to set new expectations, both internally and externally, and to bring new focus to the need to ensure that each detention hearing is a robust review.
Measures that have worked at other tribunals could be adapted for the
ID, including regularly scheduled panel meetings in each region where Members could discuss best practices and difficult cases. The development of Practice Directions and public Interpretation Guidelines may also be useful in directing the parties and assisting the Members to fully address the appropriate issues. For example, there is an opportunity for the
ID to develop an Interpretation Guideline that clarifies that “strong ties to a community in Canada” (s. 245(g)
IRPR) can weigh for or against release.
Draft Practice Directions and Interpretation Guidelines should be posted on the
IRB website for a period of public consultation. The
ID has a stakeholder committee that includes members of the immigration bar, as well as a separate consultation process for
CBSA. Drafts should be tabled at both tables before the broader public consultation.
C. Increased Oversight of Cases
It is recommended that the
ID develop a protocol to identify, on a go-forward basis, current and new cases that require greater ongoing oversight by management.
Factors should be identified that will trigger a closer oversight of individual cases. This would include, at minimum, cases where some combination of the following factors is present:
- Detention has continued beyond a specified threshold
- The detained person is unrepresented
- There is evidence that the detained person has special vulnerabilities by virtue of physical or mental health, disability or age.
- The detained person is refusing to attend hearings
- The detained person attends hearings but is unable or unwilling to participate
- The detained person has put forward one or more release plans which have been rejected
- The major cause of continued detention is non-cooperation
- The detained person has young children.Footnote 97
- Other factors as may be identified through internal or external consultations.
D. Tools to Support Robust Review
It is recommended that the
ID implement mechanisms to support a robust review at each hearing. For example:
All cases should be triaged after the 7-day review, and on a continuing basis, to allow management to identify and monitor cases according to their distinct characteristics. For example, cases should be rated on a public danger scale so that individuals with a history of fairly minor property crime are distinguished from individuals with a history of violent crime involving personal injury (Based on our sample, this would likely be less than 2% of the total).
Access to Decisions and Transcripts
Members should receive hearing files earlier than the day of the hearing.Footnote 98
Transcripts of all decisions should be in the
ID file, and provided to the detained person and
In addition to transcripts of all decisions, every file should contain:
- Transcripts of the full 48-hour hearing or 7-day hearing (CBSA generally presents the case history in detail at one or the other)
- Full transcripts of every hearing at which a proposal for release is presented
CBSA documentation which respect to criminal convictions, if relied upon
- Counsel attendance records
- Release Assessment Form (discussed below).
Release Assessment Form
After the first 30 day review, if the person is not released, the
ID Member conducting the hearing should complete and place in the file a typed preliminary
Release Assessment Form which would include:
- The grounds for detention;
- A very brief summary of the primary evidence relied upon; and
- A preliminary assessment of what components would be necessary in a possible release plan and/or what specific barriers to release exist. For example, does the Member believe this person needs counselling for substance abuse; would weekly reporting be necessary; do they require structured oversight or a residential placement?
One purpose of the
Release Assessment Form would be to underline the
collective responsibility of
ID members for the ongoing review of the person’s detention. The form would also underline the requirement at each succeeding hearing to focus on alternatives to detention. Another purpose would be to avoid imposing inconsistent expectations for release from one hearing to the next.Footnote 99 For a discussion of how the decision itself could be used for these purposes instead of the recommended form, see below.Footnote 100
After each hearing at which the detained person is not released, the presiding Member could update or vary the assessment. For example, if there was a prior release proposal that was rejected, the Member ask the detained person and
CBSA if the shortcomings in that proposal can be addressed and make a note of that discussion on the Form for the next presiding Member. Canvassing options for release at the hearing should be expected as part of every detention review process.
Release Assessment Form would not of course be a public document,Footnote 101 it would be perfectly acceptable and even expected for a presiding Member to tell both parties that, in their view, an approved release plan might need to include addiction counselling or a curfew, for example. The form could assist in framing the consideration of suitable release options early and often, both internally in discussions with other presiding Members, and in the hearing rooms.
Regular meetings of
ID Members should be instituted to provide a forum for the discussion of best practices and to obtain input on difficult cases. The
Form could help inform the discussion of particular cases, as part of a more consultative approach to adjudication, consistent with the principles in
Consolidated Bathurst.Footnote 102 It goes without saying that all consultation would be voluntary and that Members are presumed to be quite capable of engaging in discussion with their peers without abdicating their own adjudicative responsibilities or in any way delegating decision-making authority.
E. Immediate Review of Long Term Detention Files
It is recommended that the
ID undertake an immediate review of all individual cases where detention has exceeded a set threshold, beginning with the longest detentions.
Detention in Excess of 365 Days
First priority should be the approximately 80 cases where individuals have been held in detention longer than one year. These cases should be reviewed immediately by a specialized team that is established outside of the regional structure. The mandate of the team should be to:
- Review transcribed hearings and decisions in a quick turnaround to determine if there are inconsistencies or errors which are impeding a rigorous review of whether continuing detention is justified.
- Identify cases where there are or could be opportunities for release.
- Recommend an early review if there are issues that need to be addressed quickly.
- Implement, on a pilot basis, a protocol for long term detentions that incorporates the recommendations in this report. For example:
- Complete a Release Assessment Form for each file
- Consider if one or more files should be assigned to a Member from another Region, making use of the capacity for electronic hearings. This might help kick start more cross-region sharing of expertise and practices.
- If there have been one or more release proposals in a file that could be improved upon, work with the Assistant Deputy Chairpersons to assign the file to a Member who will remain seized and will attempt to assist both parties to develop a suitable release plan.
- In Central Region files, some files might be flagged for referral to the TBP.
- If there are suggestions of a mental health disability and the person is unrepresented, ask the Assistant Deputy Chairperson in the Region to assign a DR with instructions to investigate eligibility for legal aid-funded counsel.
Detention in Excess of Six Months
Secondly, for those cases where detention has been more than six months but less than one year, the same assessment as above should begin immediately, but within each Region. There are approximately 80 individuals in this group as well, with 60% in Central Region. Where possible,
ID counsel could be included in this triage and assessment process.Footnote 103
Each Region should quickly set up a triage team which could include experienced Members chosen for their openness and ability to bring a fresh approach to the work. Quick turnaround is key here. The team would review the history of the case, complete a Release Assessment Form and identify any strategies that could be put in place immediately to ensure a robust review, including the following, if appropriate:
- Assigning one Member to be seized for a period of time, where there are issues that need consistent consideration, such as release proposals that could be improved to facilitate release; a complex identity investigation; or a lack of diligence on the part of
- Taking the file to a voluntary meeting of Members who have conducted review hearings on this file to discuss case management. The parameters of discussion would be consistent with the principles of
Consolidated Bathurst,Footnote 104 adapted as appropriate to the
ID’s operational and practical realities. A panel meeting might be appropriate where there are issues such as an absent or non-participating detainee; unrepresented detainee; unprepared Hearing Officers; inconsistent adjudicative findings. The meeting can canvass questions such as:
- What would indefinite detention potentially look like in this case;
- Have Members been asking the right questions of either party;
- Is there missing evidence or are there evidentiary issues that need to be clarified;
- Is there a legal issue where a legal opinion from
ID counsel is needed?
- Should a file be assigned to a Member from another Region if the review team thinks there is a heightened need for fresh eyes.
F. New Hearing Protocols to Support Accessible and Active Adjudication
Below are recommendations for new protocols for the conduct of hearings.
Revise the standard opening remarks to address the detainee and
CBSA in plain language that will be accessible to unrepresented persons. The statement should include:
- Reference to the
duty to release under s.58(1) unless satisfied that a statutory ground for detention is proven.
- Explanation that the Member decides on a
balance of probabilities and what that means in the context of the case.
- New language about the role of previous decisions, based on the
Thanabalasingham decision. (For example: Based on what I hear today and my own interpretation of the evidence in your case, I can decide to release you today but if I do so, I must provide
a clear and compelling explanation of the reasons why I am deciding differently than previous Members hearing your case”.)
- An explanation of possible
alternatives to detention. Where detention has continued, the explanation should be relevant to the facts of the case, perhaps addressing any previously rejected proposals for release.
- A statement that the hearing is being conducted for the person and that their
participation is encouraged.
- A statement that the person has the
right to question anything said by the Hearing Officer at the hearing and to comment on the evidence and submissions of the Hearing Officer.
- A statement that the onus is on the Hearing Officer to satisfy the Member, on a balance of probabilities, that it would not be appropriate to release the person today.
ID should consider developing a Practice Direction to set out protocols and expectations concerning the introduction of evidence at hearings, including that:
- The detained person will be asked to affirm their evidence at every hearing.
- Where a Hearing Officer is giving detailed evidence (other than, for example, an update on Federal Court proceedings or other undisputed information), he or she will also be asked to affirm their evidence based on information provided by the Enforcement Officer or others.
- Where appropriate, an Enforcement Officer can be required to attend a hearing to provide evidence under affirmation.
- That counsel will be expected to examine all potential bondspersons and other witnesses in the hearing room, under affirmation.
With respect to the last point, if there are venues, such as particular jails, where this is not possible, the Practice Direction should address how these situations will be handled through electronic or other means to facilitate the participation of the detained person.
Disclosure and Related Issues
A Practice Direction should clarify expectations for disclosure of documents.
ID should develop a system to provide copies of decisions after the hearing to the person concerned.
ID should promote an active adjudication model. Some Members already take a more active role in managing their hearings to ensure all the relevant evidence is forthcoming, including where the detainee is unrepresented. Advanced training would assist Members in actively managing their hearings to facilitate a robust review and meaningful participation by the detained person.
This approach would include, for example:
- Soliciting evidence from both parties on relevant issues;
- Particularly where the detained person is unrepresented (or under-represented), explaining where their evidence is needed to assist in the review, and asking them to address particular issues. (For example: “CBSA says that because you have close family in Canada, and no family in your country of origin, you are likely to go underground, if you are released? I want to hear what you have to tell me in response to that.”);
CBSA on time estimates or investigation details where unclear;
CBSA Enforcement Officers to attend the hearing where clarification is needed;
- Asking the parties to do further work on a release plan that is not yet sufficient.
ID should encourage a tribunal culture that values compassionate adjudication. This is not a new concept, particularly in the criminal court system. There are, for example, “mental health courts” that provide specialized services to offenders who are living with mental health problems; and Gladue reports are used to inform the sentencing of Indigenous offenders. It is now recognized that judges and adjudicators need training to help them understand the lives of the people who appear before them, including for example, the impact of drug addiction or sexual assault.
Other tribunals, and the
ID itself, have offered training to help adjudicators develop the skill of adjudicating both fairly and compassionately. In our sample, we listened to hearings where Members allowed a frustrated and scared detained person to tell their story at considerable length, and who acknowledged the pain expressed in their testimony.
However, we also heard adjudicators who did not meet the standard of respect that was owed to the detained persons appearing before them – perhaps their tone was somewhat patronizing or they did not wait for the interpreter to translate what they were saying so the detained person was unable to follow the proceeding.
Some Members delivered formulaic decisions without acknowledging the evidence of the detained person, using non-accessible language, and speaking to their tape recorder and not to the person who was being sent away for another 30 days.
Inculcating a culture of respect and compassion is not a simple matter. It takes a multi-faceted approach led from the top. Part of it is training, but there has already been some excellent training that has, for example, brought in external immigration counsel who provided a perspective from the other side. Identifying leaders within the pool of Members may be helpful. If the
ID is able to diversify its panel to include Members with experience in practicing immigration law, this will help ensure different viewpoints at the table.
G. New Expectations for Decision-Making
In order to strengthen its capacity to conduct a robust and meaningful review at each hearing, it is recommended that the
ID adjust the expectation that Members consistently deliver their full reasons in an oral decision at the close of every hearing. Members may not always be able to deliver an immediate oral decision where there are complex evidentiary or legal issues to consider. This already happens occasionally – in our sample, there was one example where a lengthy written decision was rendered after the hearing.
In some instances, the review hearing is scheduled early, allowing time to adjourn and reconvene to deliver full reasons. New protocols may be required to deal with other situations. For example, in some cases, a member might deliver summary reasons at the close of the hearing and then, on their own motion, arrange early scheduling of the next hearing to allow time for further deliberation and/or fuller reasons. This could only happen if there was the possibility of remaining seized or being re-assigned.Footnote 105
Members need to be able to take the time in their decision-making to:
- Make nuanced findings of credibility as necessary.
- Critically and independently assess and weigh evidence
- Bring a fresh mind to the person’s history in light of the passing of time
- Actively apply the balance of probabilities test to the evidence, explaining if and how the flight risk or possible public danger is greater than 50%
- Address the statutory duty to release unless satisfied that one of the legislative factors directs otherwise.
ID may need to provide resources if there are Members who need more support to meet these expectations.
H. Access to Legal Aid Services
It is recommended that the
ID initiate discussions with provincial legal aid plans to canvass the possibility of increased legal services for persons in detention. Uneven access to counsel across the country is an enormous problem. As discussed above, representation rates across the country vary from a high of 76% in Eastern Region to a low of 38% in Central Region.
The most critical need is in Ontario. Approximately 50% of all hearings and over 70% of detentions that exceed one year are in Central Region,Footnote 106 yet Legal Aid Ontario (LAO) reportedly provides only short term certificates for one or two hearings. The Refugee Law Office funded by LAO also provides representation at
ID hearings on a limited basis due to over-stretched resources.
Talks with LAO have already been initiated by the Assistant Deputy Chairperson in Central Region with a view to expanding legal services for detained persons living with mental illness. Hopefully these discussions can be expanded to address the need for representation at more detention hearings, so that Ontario can meet the level of representation available in Quebec, British Columbia, Manitoba and Alberta. It would be hugely beneficial if LAO were to establish a duty counsel program based at the IHC to provide representation at
ID hearings and to refer detainees to certificate counsel as needed. In Saskatchewan and the Maritime provinces, the need for legal services could possibly be managed through an expansion in the number of legal aid certificates for private representation.
Even apart from the critical barriers to justice faced by vulnerable persons in detention, tribunals generally report that the frequent appearance of lawyers at hearings, including duty counsel, serves to improve the overall quality of the hearing and decision-making process by, in effect, keeping adjudicators ‘on their toes’.
I cannot leave this topic without commenting that the best solution would be a federally-funded national legal services program for
ID hearings, staffed by lawyers and trained paralegals, and based in Toronto, Vancouver and Montreal. I am also aware that the issue of Federal funding to provincial legal aid plans for expanded representation in immigration matters is an area of very long-standing negotiation.
I. Role of the Designated Representative
It is recommended that a Practice Direction be developed to set out the duties and responsibilities of Designated Representatives. This would serve to clarify their role, both internally and for the public and persons in detention.
Additionally, it is recommended that a process should be introduced to monitor the quality of the advocacy and support provided by DRs. This could include a survey sent bi-annually to duty counsel who regularly appear with the DRs, to the Refugee Law Office in Ontario, as well as to outside counsel in every case where a DR supports a person with counsel, whether or not that counsel regularly appears at the
ID. A good DR will be in contact with the detained person’s counsel.
The detained person should also be asked to complete a different form that asks questions like: Do you feel your DR listened to what you said and understood your situation? Obviously all survey results would need to be interpreted, but the feedback from the detained person could be an important indicator of where there are problems.
Members should be asked to regularly complete a feedback form on all DRs that have appeared at their hearings.
J. Review of Policies on Bonds and Terms of Release
It is recommended that the
CBSA undertake a re-evaluation of the policies surrounding release on a bond and the use of broader alternatives to detention such as house arrest or curfew. The audit was not in a position to examine the interaction between
ID authority and
CBSA authority in this area. However, the following potential issues were identified:
- Is the
CBSA’s approach to bonds generally consistent with Federal Court jurisprudence, including the
M.C.I. v. B188, wherein the Court upheld an
ID decision to not impose a cash bond due to the detained person’s limited resources?Footnote 107
- Is the
CBSA’s approach to bonds consistent, or should it be consistent, with the direction of the Supreme Court of Canada in
R. v. AnticFootnote 108, confirming the principle in criminal cases that release is to be ordered at the earliest opportunity and on the least onerous grounds?
- Why does the
ID approach to cash and performance bonds vary in different parts of the country? Is this dictated by
- Is the requirement that a performance bond be secured against real estate only a requirement in Eastern Region? Are performance bonds against income allowed in other regions?
- Given that the requirement to secure a performance bond against real estate creates a disproportionate disadvantage to indigent individuals, should this requirement be abandoned in appropriate cases?
- The Government announced in 2016 that it would invest $138 million to create alternatives to detention: have these funds been committed and will programs be developed to support release for indigent individuals without access to sureties?
- In light of recent initiatives in at least one province to make bail more accessible to indigent and vulnerable persons,Footnote 109 are the requirements imposed in
ID hearings too onerous for low-income individuals who are disproportionally identified with prohibited grounds of discrimination, including disability and race.
CBSA moving forward with plans to offer GPS tracking as a less-costly and more humane alternative to detention?
- Could greater use be made of broader alternatives to detention, such as house arrest or curfews? Could halfway houses be accessed for placements, as suggested by the Ontario Superior Court in
Toure v. Minister of Public Safety.Footnote 110
K. Professional Development and Recruitment of Members
With a few exceptions, this report will not make specific recommendations about training for Members, in part because the need for training is implicit in some of the recommendations (e.g. promoting an active adjudication model) and in part because there has been some excellent training provided over the last few years. Recently,
IRB counsel have included presentations by lawyers from the immigration bar and have provided training on the principles for release in bail court, for example. Training of this nature, that encourages Members to locate their mandate within a broader justice framework, is very useful.
Given the quality of the training provided, including extensive written materials, there is a question as to whether or not training is resulting in better practices on the ground. Judging from the gap between the training materials reviewed by the audit and our findings in some files, it appears that the training is not necessarily having the desired impact across the board.
There are two areas where training is specifically recommended. First, there is a need for advanced training on the principles and practice of making credibility assessments and factual findings on a balance of probabilities basis. This would include sessions on how to identify consistent and corroborative evidence; how to weigh conflicting evidence; and how to dispassionately assess where the preponderance of evidence leads, applying the civil burden of proof.
To be clear, these determinations can be very difficult. To get at the truth, to assess credibility fairly, what is needed is the ability to see things from all perspectives, including in particular, that of the person whose liberty is at stake, as well as an effort to try to understand what their actions could mean in the context of their lives.Footnote 111
ID Members had a training in 2016 on mental health and addiction issues, I would recommend re-visiting this topic. The impact of addiction, substance use and mental health issues on memory and on testimony would be one area for consideration. As well, training on the absence of a general correlation between mental health and violence is critical.
Additionally, as discussed above,Footnote 112 a shift to a more collaborative tribunal culture will support a rigorously fair process in the conduct of hearings and in decision-making. Members would have the option of taking difficult cases to a panel meeting for a discussion within the parameters established by
Consolidated Bathurst.Footnote 113 If the
ID had regular panel discussions, and an expectation that Members could confer with other Members, counsel and managers on a regular basis, it would provide more opportunities to reinforce training in the context of day-to-day adjudication.
Panel meetings could also serve as a forum for the discussion of policy issues or practice issues, as well as for Member input on draft Practice Directions or Interpretation Guidelines.
Finally, as discussed above,Footnote 114 it is recommended that the
ID recruit Members from the immigration bar or from social agencies serving immigrant communities to fill vacant positions, in the same way that labour tribunals recruit from both management and union side. Having Members with a range of life and professional experiences at the table could make an important difference, particularly in the context of a more collegial and consultative adjudicative culture, but only if new recruits are supported in sharing a fresh perspective.
L. Persons with Mental Health Problems
It is recommended that the
ID initiate immediate discussions with
CBSA to address the enormous problem of affording fair and humane treatment to persons in detention who are living with mental illness. More than one-third of the individuals in our sample identified as people with mental health problems.
The fairness of the process for persons with mental illness, and the impact of detention without treatment, emerged as significant issues in our review. Most alarming was the case in which an individual was held in detention, at length, in a catatonic state, without treatment, unresponsive and barely mobile. It was more than two years before the person was transferred to a psychiatric hospital in the corrections system where he could receive treatment.
The treatment, or lack thereof, of persons in immigration detention who have mental illness has been commented on critically by the Ontario Superior Court in both Ali and
Toure, the Court found that Mr. Toure’s detention without treatment constituted, in the circumstances of that case, cruel and unusual punishment contrary to s.12 of the
Charter, stating that the case demonstrated:
“….an inexcusable institutional dereliction of responsibility of the federal authorities to protect the interests of those in its care and control.Footnote 115
Ali, the Court found that continued detention would constitute a violation of ss. 7 and 9
Charter rights, citing the unavailability of treatment as a factor:
“ ….. evidence of health concerns that have developed with respect to Mr. Ali, both physical and mental, that will not be properly addressed as long as Mr. Ali remains in a provincial detention facility.”Footnote 116
In the case discussed above where the person suffered a complete mental health collapse,
ID Members and
CBSA Hearing Officers, at successive reviews, proceeded as if his health situation was of little significance to their process. At several hearings, the presiding Member characterized the person’s absence as a matter of willfulness or lack of cooperation.
This report has already raised many questions about the
ID’s responsibilities in this case. What were
CBSA’s responsibilities? How can
CBSA have left this person in this situation for two years while the
ID continued to conduct 30-day reviews? And why did it take years for the Public Trustee to be appointed? What would have happened to him if the Federal Court had not been closely monitoring this case?
All of this points to the need for a new high level protocol to be negotiated between
CBSA and the
IRB to ensure cases like this are flagged and, at minimum, that the person is provided with appropriate treatment in a timely way.
The recommendations for triage and closer oversight of cases, for better access to legal services, and for stricter guidelines on the role of DRs, are all intended to promote a fairer detention review process for persons with mental health problems.
Finally, the report has already recommended above that the
ID introduce advanced training on mental health issues, to address, among other things, the danger of allowing assumptions and stereotypes about mental illness to distort determinations of flight risk and public danger.
Sahin v. Canada (Minister of Citizenship and Immigration),  1 F.C. 214 (T.D.)
Canada (Minister of Citizenship and Immigration) v. Lai,  3 F.C. 326 (T.D.); 2001 FCT 118
M.C.I. v. Kamail, Nariman Zangeneh (F.C.T.D., no. IMM-6474-00), O’Keefe, April 8, 2002; 2002 FCT 381
Canada (Minister of Citizenship and Immigration) v. Thanabalasingham,  3 F.C.R. 572 (F.C.A.); 2004 FCA 4
Charkaoui v. Canada (Citizenship and Immigration),  1 S.C.R. 350; 2007 SCC 9
Panahi-Dargahlloo, Hamid v. M.C.I. (F.C., no. IMM-4335-08), Mandamin, October 30, 2009; 2009 FC 1114
M.C.I. v. Li, Dong Zhe (F.C.A., no. A-642-08), Desjardins, Létourneau, Trudel, March 17, 2009; 2009 FCA 85
Arshad v. M.P.S.E.P. (F.C., no. IMM-844-13), Martineau, February 27, 2013; 2013 FC 203
Warssama, Abdirahmaan v. M.C.I. (F.C., no. IMM-1505-15), Harrington, November 24, 2015; 2015 FC 1311
Ahmed, Ali Ahmed v. M.C.I. (F.C., no. IMM-2572-15), LeBlanc, June 24, 2015; 2015 FC 792
Ahmed, Ali Ahmed v. M.C.I. (F.C., no. IMM-3022-15), Fothergill, July 17, 2015; 2015 FC 876
Ahmed, Ahmed Ali v. M.C.I. (F.C., no. IMM-3579-15), Boswell, August 26, 2015; 2015 FC 1012
Wang, Zhenhua and Yan, Chunxiang v. M.P.S.E.P. (F.C., no. IMM-8294-14), Phelan, January 21, 2015; 2015 FC 79
Wang, Zhenhua and Yan, Chunxiang v. M.P.S.E.P. (F.C., no. IMM-1655-15), Gagné, June 8, 2015; 2015 FC 720
Yan, Chunxiang and Wang, Zhenhua v. M.P.S.E.P. (F.C., no. IMM-3915-15), Southcott, September 28, 2015; 2015 FC 1125
B.B. and Justice For Children and Youth v. M.C.I. (F.C. no. IMM-5754-15), Hughes, August 24, 2016 (unpublished Order)
M.P.S.E.P. v. Lunyamila, Jacob Damiany (F.C., no. IMM-3428-16), Crampton, October 27, 2016; 2016 FC 1199
Brown, Alvin John and End Immigration Detention Network v. M.C.I. and M.P.S.E.P. (F.C., no. IMM-364-15), Fothergill, July 25, 2017; 2017 FC 710
Chaudhary v. Canada (Public Safety and Emergency Preparedness), 2015 ONCA 700 (October 20, 2015)
R. v. Ogiamien, 2016 ONSC 4126, June 29, 2016.
Ogiamien v Ontario, 2016 ONSC 3080, May 10, 2016.
Canada v. Dadzie, 2016 ONSC 6045, September 28, 2016.
Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 839 (November 2, 2017)
Ali v. Canada (Attorney General), 2017 ONSC 2660, April 28, 2017
Scotland v. Canada (Attorney General), 2017 ONSC 4850, August 14, 2017
Ebrahim Toure v. Minister of Public Safety, 2017 ONSC 5878, (October 5, 2017),
Chhina v Canada (Public Safety and Emergency Preparedness), 2017 ABCA 248, July 31, 2017