Speaker's Corner: A story of unchecked power

In March of this year, two men died within a week while in the custody of the Canada Border Services Agency in Ontario — one in an immigration holding centre and the other in a jail. One of them reportedly committed suicide, and the cause of death of the other is still unknown. In December 2013, a woman in CBSA custody in British Columbia died in hospital after trying to hang herself at an airport holding centre; the death was not publicly reported until a month later.

Why did these incidents occur? Did the CBSA do, or fail to do, something that could have prevented them? Why is information withheld in these cases?

Any death that occurs on the watch of a government agency demands answers — demands accountability — and yet that is precisely what is missing with the CBSA. There is no accountability. It is reported that 14 people have died while in custody of the CBSA and its predecessor agencies since 2000, and there are still no answers and no concrete steps toward accountability. The CBSA also collects and shares national security information domestically and with foreign governments, but there is no review of its intelligence activities despite the recommendation 10 years ago by the Federal Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar known as the Arar Commission.

The CBSA is a powerful agency, created in Canada after the 9/11 terror attacks in the U.S., and mandated to support national security and public safety through integrated border services. It assumed functions that had previously been held by Canada Customs, Citizenship and Immigration Canada, and the Food Inspection Services Agency — but it is a distinctly different creature with wider powers.

The CBSA has been operating since 2003 as an integral part of Canada’s public safety and national security mandate. It has law enforcement powers, including arrest (with or without a warrant), detention, and the power to detect and remove inadmissible individuals from Canada. The CBSA also collects and shares national security information domestically and with foreign actors. 

The CBSA’s powers directly engage fundamental rights and freedoms protected in the Canadian Charter of Rights and Freedoms, as well as Canada’s binding legal obligations under international human rights and refugee law. Yet, there is no independent oversight or review of any of the activities carried out by the CBSA. 

Given the impact on fundamental rights, accountability is imperative. In 2013-2014, the CBSA held more than 10,000 people in detention, in holding centres, and in jails. The Canadian Civil Liberties Association has spoken with refugee lawyers who report that individuals are being detained by the CBSA for years pursuant to the Immigration and Refugee Protection Act. Prolonged and indefinite detention violates principles of due process and habeas corpus, and it may even constitute cruel, inhumane, and degrading treatment or punishment.

There are also serious allegations about the conditions of detention, including the segregation (i.e. solitary confinement) of detainees and treatment of individuals with mental health concerns. One lawyer told us about his client who was considered criminally inadmissible to Canada and who suffered from mental illness. This individual was “detained” by the CBSA for years in a correctional facility where, in solitary confinement, he deteriorated to a catatonic state and was engaging in self-harming behaviour. Only the urgent intervention of the lawyer and a psychiatrist enabled the individual to be moved to a psychiatric hospital. 

There must be independent oversight and review of the detention conditions of all individuals held in CBSA custody, including those held in solitary confinement, and those with mental health issues who we argue should never be placed in solitary confinement. Further, pursuant to international refugee law, refugees are not to be detained with prisoners sentenced for crimes, but there are reports that this has occurred in some facilities.

We have also heard reports that the CBSA agents have detained asylum seekers and separated children from parents, in contravention of international refugee law and human rights law relating to children.
Further, refugee claimants and foreign nationals have allegedly been subject to inappropriate questioning and intimidation tactics by CBSA officials, including contacting authorities in countries of origin despite the threat that can pose to an asylum seeker or his or her family.

It is worth reiterating that asylum seekers and refugees are among the most vulnerable persons on the planet: individuals fleeing persecution on the grounds of race, religion, nationality, membership in a particular social group, or political opinion, without the protection of their home state. Their vulnerability only underscores the need for a check on the CBSA. In addition to due process rights, the information-sharing powers of the CBSA are also cause for serious concern. As we know from the mistaken information sharing by Canadian agencies with the U.S., which resulted in the “rendition” of Arar to Syria and his subsequent torture, serious and devastating errors can be made by intelligence agencies.

In his policy recommendations emanating from the Arar Commission — one of three federal commissions of inquiry that have examined information sharing in the national security context — Justice Dennis O’Connor recommended that the CBSA be subject to independent review. Such review should include both a complaints investigation review process and a self-initiated review process.

Ten years after the Arar Commission recommendations, however, there has been no movement. Worse, the accountability gap has only widened now that Bill C-51 is law and 17 domestic agencies, including the CBSA, enjoy unfettered information sharing with each other and foreign agencies.

As Public Safety Minister Ralph Goodale considers the broad issue of national security oversight and accountability, he should consult meaningfully with the many Canadian civil society groups that have been pressing for CBSA accountability these many years, and have identified practical solutions and frameworks. For our part, we at the Canadian Civil Liberties Association will insist that any new parliamentary review process for national security agencies should not sidestep the need for independent oversight and review of the CBSA, for its law enforcement, detention and removal powers, as well as its intelligence functions.

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Sukanya Pillay is executive director and general counsel at the Canadian Civil Liberties Association.