Immigration

Canadian Border Services Agency lacks oversight body

Toronto immigration and refugee lawyer Andrew Carvajal says the lack of an independent oversight body for the Canadian Border Services Agency (CBSA) has become even more salient as the agency has been granted greater powers under Bill C-51.

A recent Lawyers Weekly article points to the death of a Somali refugee in immigration custody as the latest in a string of cases highlighting the urgent need for external oversight of the CBSA.

“Last month, the University of Toronto Faculty of Law’s International Human Rights Program (IHRP) released a report titled ‘We Have No Rights’: Arbitrary imprisonment and cruel treatment of migrants with mental issues in Canada, which found that nearly one-third of all non-citizens, or migrants, who are detained are placed in maximum-security provincial jails, sometimes for years, all of which violates international human rights law; constitutes arbitrary detention and cruel, inhuman and degrading treatment; discriminates on the basis of disability; and violates both the right to health and the right to an effective remedy,” the publication reports.

“The IHRP’s first recommendation — among 11 cited in the report — is a call for the creation of an independent body/ombudsperson responsible for overseeing and investigating the CBSA — similar to the federal Office of the Correctional Investigator that has an ombudsman for federally sentenced offenders,” it continues.

Carvajal, a lawyer with Desloges Law Group, weighed in on the issue, telling the legal trade publication that in the absence of an independent oversight body for the CBSA, the only way to complain about treatment by its officers is to contact the agency.

“But we don’t know to what extent the agency holds its own officers accountable,” Carvajal says in the article.

“In the eyes of the public, to what extent can you consider the process transparent when the same agency is making decisions about whether something is improper or not?” he says.

In an interview with AdvocateDaily.com, Carvajal says currently there is no independent review body as there is for other agencies with police powers.

“In the past, there has been much criticism from the immigration bar in relation to treatment of people detained by CBSA,” he says. “People have died in their custody and not much information was made available to the public about this.”

He adds there have been complaints against CBSA for sharing information about refugee cases with the authorities in the claimant's country of origin or with organizations that may be tied to the persecution of the individual processed by the agency in commencing their refugee claim.

“There have also been general complaints about arbitrariness in the way CBSA handles decision-making and the need for a body to oversee the reasonableness of their decisions,” he says.

The Immigration and Refugee Board — which is the body that determines whether people are to remain in detention or not — is the only place where detainees can raise complaints, Carvajal says. “However, these complaints are often irrelevant to the determinations of the Board.”

He notes the oversight of CBSA is increasingly important as the CBSA has been granted greater powers under Bill C-51, for example, in terms of seizing documents and property.

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