British Columbia Civil Liberties Association, Canadian Council for Refugees, Canadian Association of Refugee Lawyers
For immediate release
5 March 2014
Seven Years of Inaction: Rights organizations call for oversight mechanism in response to CBSA abuses
Public inquiry recommended oversight in 2006 – no action since that time
The BC Civil Liberties Association, the Canadian Council for Refugees and the Canadian Association of Refugee Lawyers today called on the government to end its long inaction on the need for an independent and effective complaints and monitoring mechanism for the Canada Border Services Agency (CBSA). The Maher Arar judicial inquiry recommended that CBSA’s national security activities be subjected to independent review in 2006. The federal government has failed to act on this recommendation.
While CBSA has sweeping police powers, it is unlike most other police forces in Canada because there is no independent oversight body to review its actions and to ensure respect for the human rights of refugees, migrants, and Canadians who deal with the agency. Municipal and provincial police across Canada, as well as the RCMP, have various forms of complaint agencies and independent investigation agencies to supervise their conduct.
“There is no excuse for seven years of doing nothing to ensure Canada’s border police are accountable to independent oversight,” said Josh Paterson, Executive Director of the BC Civil Liberties Association. “That’s seven years of people having virtually nowhere to turn when they have a complaint about the CBSA. Just filing a complaint with the CBSA itself is not good enough. There needs to be independent review for all of CBSA’s national security, enforcement and border policing activities.”
The organizations presented three recent examples of situations that urgently cry out for independent investigation:
- CBSA officers share information about refugee claimants with individuals in the country of origin, potentially endangering the safety of the claimants or their families.
- Evidence suggests that CBSA may have given the Sri Lankan security authorities an affidavit from a Sri Lankan man alleging to have been tortured by those same authorities, possibly putting him and his family in danger.
- Lucia Vega Jiménez died in late December 2013 while in CBSA detention: information was not made public about this death until more than a month after it occurred.
“Refugee claimants and other migrants are among the most vulnerable people in Canadian society: for this reason the CBSA needs the most robust oversight mechanism possible,” said Catherine Dauvergne, spokesperson for the CCR and Professor of Law at UBC. “It is often difficult if not impossible for them to make a complaint if they have been mistreated, especially if they have been deported. There needs to be proactive monitoring of CBSA by an independent oversight agency with the power to start investigations on its own.”
“CBSA officers have sweeping powers of investigation, with few constraints and no oversight. Claimants and migrants fear being imprisoned or deported if they report incidents of bullying, threats or abusive interrogations,” said Mitchell Goldberg, vice-president of CARL. “There must be independent oversight of CBSA to ensure integrity and transparency in day-to-day operations.”
Josh Paterson, Executive Director, BC Civil Liberties Association, (604) 630-9752, firstname.lastname@example.org
Prof. Catherine Dauvergne, representative of Canadian Council for Refugees, 604-827-3055, email@example.com
Colleen French, Communications Coordinator, Canadian Council for Refugees, 514-277-7223, ext. 1, 514-476-3971 (cell), firstname.lastname@example.org
Lorne Waldman, President, Canadian Association of Refugee Lawyers, (416) 254-4590 (cell), email@example.com
Mitchell Goldberg, Vice-President, Canadian Association of Refugee Lawyers, (514) 844-7528, firstname.lastname@example.org
What might an independent oversight body look like for Canada Border Services Agency?
When CBSA officers carry out their responsibilities under Canada’s customs and immigration laws, they have wide-ranging police powers. CBSA officers have powers of arrest, detention, search and seizure. At the border, CBSA officers have an even wider range of powers than police. For example, they can stop travellers for questioning, take breath and blood samples, and search, detain and arrest non-citizens without a warrant. Despite these sweeping police powers, there is no independent oversight body for the CBSA.
There are numerous models in Canada for independent oversight, review and complaints bodies for police forces. At a minimum, BCCLA, CCR and CARL believe that any oversight agency or combination of oversight agencies for CBSA must:
- Be able to receive and deal with public complaints about CBSA conduct, including third-party complaints from public interest organizations
- Be able to initiate its own reviews and investigations about CBSA conduct even where there is no complaint. CBSA deals with many vulnerable people who may be making refugee claims in Canada, or whose status in Canada is otherwise uncertain. These people, in many cases, are either unaware of how to file complaints or tend to be reluctant to file complaints because they are making a claim to the Canadian government and fear that complaining may result in less favourable treatment. Other potential complainants have been deported from Canada and may be unable to access a complaints mechanism in Canada. In addition, because many of the national security activities of CBSA take place in secret, an oversight process that is driven solely by complaints is inadequate as few people may ever learn about some of these activities.
- Include independent civilian investigation of critical incidents involving CBSA officers and individuals in CBSA custody.
In 2006, the Maher Arar Inquiry recommended that the CBSA’s national security activities – which were a subject of that inquiry – be subject to independent review by an agency that would also be responsible for review of the RCMP. Justice O’Connor called this the “Independent Complaints and National Security Review Agency for the RCMP”, which was to be born of a re-structured and newly empowered Commission for Public Complaints Against the RCMP (CPC). This agency would have had the power both to investigate complaints received from the public and public interest bodies, and also would have had the power to conduct self-initiated reviews. The federal government has made some changes to the mandate of the CPC, but has not acted on the recommendation to extend independent review to CBSA. BCCLA, CCR and CARL take the position that any new oversight body for CBSA must have the power not only to review its national security activities, but all exercises of its police and investigative powers including its role in the cases of individual refugee claimants. This would bring it in line with most other police services in Canada.
Currently, anyone with a complaint against CBSA must file a complaint with the agency itself. The BCCLA has not found, in dealings with complainants, that complaints often result in effective accountability. The CBSA’s Recourse Directorate, while it handles complaints about CBSA decisions and assigns different officers to deal with complaints than the officers involved, is not an independent complaints agency. It reports to the CBSA’s president. It has no authority to launch independent reviews of CBSA actions in the absence of a complaint, which is a critical function in light of the many circumstances in which it is unlikely that vulnerable people will make complaints.
Concerns about CBSA collaboration with Sri Lankan authorities responsible for human rights abuses
In October 2013, following the death of Sathyapavan “Sathi” Aseervatham in Sri Lanka, information became public that raised deeply troubling questions about the relationship of the Canadian government to the Sri Lankan authorities. Mr. Aseervatham, who was one of the passengers on the Sun Sea, had alleged in an affidavit that he was tortured on his return to Sri Lanka, by authorities who knew that he had been on the Sun Sea. Did the Canadian government share the names of the passengers with the Sri Lankan authorities? He was subsequently called in by the Sri Lankan authorities (the Terrorist Investigations Division) who allegedly interviewed him about the affidavit in the presence of officers of the Canada Border Services Agency. Did the Canadian government share a confidential affidavit alleging torture to the very authorities alleged to have committed the torture?
Since the Canada Border Services Agency has no external complaints mechanism, formally there is no one to investigate such allegations other than the CBSA itself. The CCR wrote to the President of CBSA in October 2013 calling for an investigation into these questions. To date the CCR has received no response.
Lucia Vega Jiménez
Lucia Vega Jiménez died while in CBSA custody in December 2013. She attempted to hang herself at the immigration holding centre at the Vancouver Airport, and died later in hospital. CBSA did not disclose her death to the public, although the coroner and police were notified. Ms. Vega Jiménez’s death and the failure to publicly disclose it afterwards raise many questions about the actions of CBSA, including: whether her death might have been prevented, how CBSA or its contracted private security agency responded to the emergency, how CBSA dealt with the family after her death, and why CBSA did not reveal the information to the public.
When deaths occur in the custody of other police agencies, the public is usually informed quickly and in provinces like BC and Ontario, an independent civilian investigation agency immediately investigates the case.
Breach of privacy of refugee claimants: Afghan examples
Some CBSA officers call numbers that they find on refugee claimants' cell phones, without regard to the safety of the claimant or family in the country of origin. In one case involving an Afghan refugee claimant, the CBSA officer asked for copies of the claimant's passport, to verify her identity. The claimant, however, did not have her passport so she asked for access to a computer so that she could retrieve a scanned image of the passport from her email. CBSA said they could not give her access to a computer, and directed her to give her email address and password. The claimant, who has stated she felt intimidated by the Officer’s aggressive manner, complied. The claimant later learned that CBSA had opened every email in her account and contacted her former employer in Afghanistan. The breach of privacy only came to light when the employer emailed the claimant to say that a representative of the Canadian government had asked for information about her. The claimant remains terrified that CBSA's leak of information placed her family members in Afghanistan at risk.
In another case, CBSA detained an Afghan refugee claimant for reasons of identity. The officer asked her to provide the name and contact information of someone who could forward documents to CBSA that would establish her identity. As the claimants’ parents are illiterate, she gave the name of a friend. When CBSA contacted the friend, they asked extensive questions about the claimant and why she was claiming refugee protection in Canada. CBSA's disregard for the safety of the claimant and her family came to light only after the claimant was released from detention and able to communicate with the friend.
The need for refugee protection is determined by the Immigration and Refugee Board, not CBSA. The Immigration and Refugee Board subsequently recognized both Afghan claimants as Convention refugees.
The Canadian Council for Refugees in 2011 made a complaint to the Privacy Commissioner of Canada on behalf of a refugee claimant who had similar concerns. The Privacy Commissioner’s investigation confirmed that, on the instigation of CBSA, Canadian government representatives had disclosed the claimant’s personal information to government authorities of the home country. Nevertheless, the Privacy Commissioner found the complaint “not well-founded” because such communication does not violate the Privacy Act (which does not provide any particular protection to refugees). This highlights again the lack of recourse for individuals with complaints against CBSA for actions that have the potential to harm the safety and security of refugees and their family members.