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Inside Canadian immigration detention review hearings

At any given moment, there are hundreds of foreign nationals and permanent residents being held in high-security Canadian jails without facing criminal charges. As I described in detail in a previous article, these detentions are authorized by the Immigration and Refugee Protection Act (“IRPA”). Foreign nationals and permanent residents can be put in jail if they are believed to be inadmissible to Canada and if they are found to be either a danger to the Canadian public or unlikely to appear for deportation or another immigration proceeding.

Immigration detainees do not always stay in custody all the way up to their pending immigration hearings or deportation. Instead, their detention is reviewed on a regular basis – once within 48 hours of arrest, a second time within a week of the first review and from then on, approximately every 30 days. At the end of these reviews, a member of the immigration division of the Immigration and Refugee Board (“Member”) decides whether or not the detainee will be released.

While, at a casual glance, these reviews give detainees repeated and regular chances to plead for their freedom, the actual process of detention reviews makes them a frustrating and often fruitless experience. Even when represented by counsel, the odds are stacked against the detainee.

Detention reviews are set up as adversarial hearings, with the detainee (or their representative) arguing for release, and a Hearings Officer representing the Minister of Public Safety and Emergency Preparedness arguing for their detention. On some occasions, the Hearings Officer agrees that release is appropriate, but that is not the norm. The decision on whether or not to order release rests with the Member, who hears arguments from both sides.

A detention review hearing begins with submissions from the Hearings Officer. In these submissions, the Hearings Officer both provides an update on the state of the detainee’s immigration proceedings and makes an argument for why the detainee should remain in custody.

When giving the update, the Hearings Officer gives the Member and the detainee an idea of how much longer the detainee can expect to be in jail. For instance, the Hearings Officer may say when the detainee’s admissibility hearing will be scheduled or when a plane ticket home will be purchased. From my experience, Hearings Officers regularly underestimate these time periods, and detainee are often kept in jail far longer than the estimated time. A shorter estimate from the Hearings Officer heightens the likelihood that the Member will order continued detention.

After finishing with the update, the Hearings Officer gets into argument on why the detention should be continued. Starting by reading from his or her own file – the vast majority of which is never disclosed to either the Board or the detainee – the Hearings Officer puts evidence before the Member in support of their argument that the detainee is either a flight risk or a danger to the public.

This evidence usually takes the form of hearsay statement, meaning statements that were made by someone else but which are now being repeated by the Hearings Officer. Such statements have historically been considered unreliable, since their original authors can’t be cross-examined or questioned. Many courts do not allow hearsay evidence, or do so only in exceptional cases. The Board is different, however, as s.173 of the IRPA states that the Immigration Division of the Board is “not bound by any legal or technical rules of evidence” and may admit any evidence it finds “credible or trustworthy in the circumstances.” Relying on this section, Members routinely accept the Hearings Officers’ hearsay evidence as objective fact, without the detainee having any reasonable opportunity to challenge it.

While the Immigration Division Rules (“IDR”) give the detainee the option to apply for a “summons” of the witness they want to cross-examine, this process is rarely used, as it is difficult and time-consuming, especially for unrepresented detainees. The detainee can also request the disclosure of the documents relied on by the Hearings Officer, but those request are often ignored. Where requests for disclosure are not ignored, Hearings Officers frequently disclose documents right before a hearing, an action explicitly prohibited by s.26 of the IDR. Members rarely reprimand Hearings Officers for such actions.

Once the Hearings Officer is done with his or her submissions, the detainee gets a chance to argue for their release. These arguments are often limited to providing an alternative to their continued detention. If the detainee can offer the Member a compelling release plan that addresses the risks of flight or danger to the public, the Member can release the detainee pursuant to that plan.

Release plans usually involve extensive supervision by bondspeople – people who promise to supervise the detainee after release and who deposit money with the Board as a promise that they will be diligent supervisors. When putting forward potential bondspeople, the detainee should make them available for cross-examination on the date of the hearing. Unlike the Hearing Officer’s evidence – which is automatically presumed by the Member to be credible or trustworthy – all evidence submitted by the detainee or their counsel is closely scrutinized, and thus bondspeople often end up being grilled by Hearings Officers and Board Members.

If the bondspeople are found to be inappropriate, the detention is continued, and the detainee is effectively precluded from presenting the same bondspeople in the future, even if they are the only people he or she knows in the whole country. There is little consistency in Members’ reasoning for finding a bondsperson inappropriate. For instance, I have seen friends rejected for not being close enough to a detainee and family members rejected for being too close. In the absence of any predictable rhyme or reason in these decisions, even an extraordinarily strong release plan is no guarantee to freedom.

After the detainee present his or her evidence, the Hearings Officer has an opportunity to reply. It is not uncommon for Hearings Officers to misconstrue or misstate facts and make inflammatory and unsubstantiated statements in these replies. The detainee has no right of reply to these statements, so they go before the Member unopposed. Following these final and often highly prejudicial submissions by the Hearings Officer, the Member makes a decision on whether or not to release the detainee.

If the Member decides to release the detainee, he or she will also set the amount of bond that must be paid by the bondspeople to secure the release. The Member is authorized to ask for a cash deposit, a non-deposit guarantee, or a mixture of both. In practice, Members rarely if ever allow for bonds without a large deposit component. This runs directly contrary to the principle set out in a recent decision of the Supreme Court of Canada in R v Antic, where the Court found that cash deposits are no more coercive than monetary pledges. However, it is a practice that continues to persist at detention reviews, leaving people with little cash but significant recoverable assets unable to bond out their friends and family.

In the end, immigration detainees face obstacles at almost every step of the detention review process. Lacking disclosure and access to opposition witnesses, detainees are often left unable to effectively challenge or respond to allegations laid against them, often with great zeal, by Hearings Officers. While the evidence against them is accepted by Members out of hand, their own evidence and the evidence of their bondspeople is scrutinized and dissected. Even if there is a good plan of release, otherwise appropriate bondspeople can be left unable to help their loved ones in detention due to the Board’s practice of setting high cash bonds. All this results in a process that can hardly be called just.

As recently as November, 2017, Minister of Public Safety and Emergency Preparedness Ralph Goodale reaffirmed that Canada’s immigration detention program is based on the principle that detention shall be used only as a last resort. It is a nice thought, but it does not represent the daily reality of those trapped in this Kafka-esque cycle of futile detention reviews. Serious reform is needed to bring this process back to some semblance of fairness.

Leo Rayner is an immigration lawyer with Legally CanadianReasonable Doubt appears on Mondays.

A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Legally Canadian or the lawyers of Legally Canadian.

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