Border agency oversight bill stalls in Parliament

OTTAWA — A bill to create an inspector general for the Canada Border Services Agency is now in question after federal Liberals who used to support it suddenly have cold feet on the matter. Bill S-205 would create the inspector general position and allow for the inspector general to self-initiate investigations or accept third-party evidence.

Nova Scotia Liberal Senator Wilfred Moore, a lawyer who was in independent practice until his appointment to the Senate, sponsored the bill.

He first drafted the bill in the previous Parliament after hearing about the 2013 suicide of Mexican national Lucia Vega Jimenez in immigration detention.

In the time since, other cases have come to light, including a case of someone who was detained allegedly for a crime he committed in Haiti while they wouldn’t let him access proof that he was in Canada at the time.

“If something like that can happen in Canada in 2016, [it’s] unbelievable,” says Moore.

“You talk about our country being a place of rule of law, fairness, natural justice and here we are behaving basically like a banana republic — unaccountable, embarrassing, denying any sense of right or justice to these people who are detained. It’s wrong and improper and it’s got to be fixed.”

While Ralph Goodale had committed to sponsoring the previous iteration of S-205 in the previous Parliament, which ended in 2015, when he became Minister of Public Safety and Emergency Preparedness later that year, his enthusiasm for the bill waned.

“While he agrees with the spirit behind Bill S-205, he cannot support it at this time,” said Scott Bardsley, spokesman for Goodale, in an email.

Bardsley says they had concerns over “technical defects” in the bill’s drafting and that the government had launched a public consultation for its national security framework that would touch on the bill’s subject matter, which it wanted to complete before committing to specific legislation.

Moore, however, reaches his mandatory retirement age this month and will no longer be in the Senate to shepherd the bill.

As well, he hasn’t yet found an MP willing to sponsor the bill in the House of Commons, which is unusual, especially for a bill that passed the Senate unanimously in October.

“A couple of people were interested and then they backed off, so I’m not sure if it was pressure from the caucus or from the minister’s office, which is disturbing because this is the right thing to do,” says Moore.

“There’s no reason for one of the members of the House not to pick this up.”

While the CBSA will be given some broad oversight by a committee of parliamentarians under Bill C-22, currently being debated in the Senate, that oversight remains focused on national security aspects of its mandate. This reinforces the need for another mechanism such as the inspector general model.

“It is necessary because there really needs to be respect for the rule of law at ports of entry, particularly when you’re dealing with human rights issues,” says Jacqueline Bart of BartLAW Canadian Immigration Barristers and Solicitors in Toronto.

“There needs to be a better complaints procedure and better monitoring.”

Bart says that as an immigration lawyer, she’s seen the CBSA make “terrible decisions.”

“Once those decisions are made, it’s very painful and expensive for applicants to reverse them,” says Bart. “For example, if someone has a cottage in Canada, and for some reason the officer didn’t like the person, you have situations [where] they ban them from Canada and they write a Section 44 report.
Basically, it’s a whole legal process in order to restore their ability to enter the country.”

Bart says that there exist what immigration lawyers term “rogue posts” where officers have a “cowboy mentality” when it comes to immigration matters, and that they either don’t have training or don’t follow the training they’ve received and make discretionary decisions that don’t follow policies when it comes to work permit applications or refugee applications.

“It affects business applicants as well as humanitarian classes,” says Bart. “Oversight is key to monitor CBSA, both at a high level as well as with respect to the comportment of CBSA officers at ports of entry as well.”

The CBSA’s powers not only include police powers such as the RCMP at the border but also branches that perform criminal investigations and immigration investigations inside Canada, as well as having overseas interdiction and information-gathering units.

The agency enforces everything from firearms legislation to the Endangered Species Act to agricultural regulations.

Peter Edelmann, a Vancouver immigration lawyer who helped draft the Canadian Bar Association’s position paper on national security oversight, adds that like the RCMP and CSIS, much of the CBSA’s work is done in secret and is never disclosed.

Julie Taub, an immigration and refugee lawyer in Ottawa who is a former member of the Immigration and Refugee Board, believes the bill should not be a priority.

“At the present time, the priority should be increased funding to the CBSA to allow them to fulfil their primary mandate, to protect Canada,” says Taub. 

“The government is planning to spend $340 million on contracting a new detention facility for illegals in Canada.

There are approximately some 400 illegals in detention across Canada at any given time, but there are some 40,000 to 50,000 unexecuted warrants against illegal residents in Canada.”

Taub says that, recently, a high-level bureaucrat retiree from Immigration told her: “There are more like 500,000 illegal foreign nationals in Canada as there is no exit control on visitors, foreign workers or students.”

“So, unquestionably, the focus should be on spending this money on significantly increasing CBSA staff, improving training and increased resources,” she says.

However, having an independent watchdog for the border agency is an important consideration for visitors to Canada as well as refugees, says Josh Paterson, executive director of the British Columbia Civil Liberties Association.

“The key for us is that there must be an independent accountability mechanism for CBSA,” says Paterson.
“The government has committed to that, and we expect that they’ll follow through on that. If not by way of an inspector general mechanism proposed in the Senate bill, then clearly that needs to be through government legislation. It’s a critical demand that many groups including ours have put forward for years.”