Canada Border Services Agency Public Consultation on Measures under consideration for inclusion in the prescribed regulations related to security inadmissibility
The Office of the Federal Ombudsman for Victims of Crime
The Office of the Federal Ombudsman for Victims of Crime (OFOVC) is an independent resource for victims in Canada. It was created in 2007 to ensure that the federal government meets its responsibilities to victims of crime.
Our mandate relates exclusively to matters of federal jurisdiction and enables our Office to:
- promote access by victims to existing federal programs and services for victims;
- address complaints of victims about compliance with the provisions of the Corrections and Conditional Release Act that apply to victims of crimes committed by offenders under federal jurisdiction;
- promote awareness of the needs and concerns of victims and the applicable laws that benefit victims of crime, including to promote the principles set out in the Canadian Statement of Basic Principles of Justice for Victims of Crime with respect to matters of federal jurisdiction, among criminal justice personnel and policy makers;
- identify and review emerging and systemic issues, including those issues related to programs and services provided or administered by the Department of Justice or the Department of Public Safety and Emergency Preparedness, that impact negatively on victims of crime; and
- facilitate access by victims to existing federal programs and services by providing them with information and referrals.
Our Office is also involved in ongoing discussions with the Government about our mandate in relation to the Canadian Victims Bill of Rights (CVBR). The CVBR gives registered victims of crime a more effective voice in the criminal justice system, including statutory rights for victims to: information, protection, participation,and to seek restitution.At the core of the OFOVC’s work is to amplify the voice of victims and to ensure that victims are considered when developing or updating federal programs and services, legislation, and regulations. The OFOVC therefore welcomes the opportunity to provide input to the Canada Border Services Agency (CBSA)’s consultation regarding measures under consideration for inclusion in the prescribed conditions regulations related to security inadmissibility. It is the OFOVC’s view that issues pertaining to monitoring and controlling inadmissible non-citizens may impact victims of crime. In particular, there are potential impacts on victims with respect to non-citizens who have been convicted of an offence as defined by the CVBR1 and are under the jurisdiction of federal corrections. The OFOVC urges the CBSA to take into consideration victims’ rights to information, protection, and participation.
Right to Information and Protection
Investigating and reviewing a non-citizen’s inadmissibility to Canada and deporting a non-citizen can be a lengthy process. Over the years, victims of crime have expressed frustration to the OFOVC with not being able to access information such as dates and decisions of immigration review hearings, dates and destination of release of an offender from the CBSA’s custody, and the removal status of an offender.
In response to the issues raised by victims, the CVBR amended the Corrections and Conditional Release Act2 to allow CSC to disclose to registered victims “that the offender has been removed from Canada under the Immigration and Refugee Protection Act [IRPA] before the expiration of the sentence”. While this is a positive step forward in addressing some of the issues raised by victims, significant safety concerns remain as victims are still not provided with several other types of pertinent information about an offender’s status, while the offender is in the custody of the CBSA. In past discussions and correspondence with the CBSA and CSC, the OFOVC has raised the issue of victims’ need for information about federal offenders transferred from the custody of CSC to the custody of the CBSA, subject to an investigation or review of immigration inadmissibility or a removal order.In a March 13, 2012 letter to my Office, the former President of the CBSA noted that the “CBSA is committed to exploring administrative options available within the existing privacy regime to share information with registered victims regarding the detention and removal of non-citizen offenders.”
Right to Participation
The OFOVC has also raised concerns with respect to victims’ participation – specifically, that victims do not have the right to attend and present a statement at Immigration Review Board (IRB) hearings. Our Office has recently provided the recommendation that victims should have the right to have a voice and participate in IRB hearings, in both our submissions and response to Bill C-32, the CVBR. This same recommendation has been shared with the CBSA directly. In the March 13, 2012 letter to our Office noted above, the former President of the CBSA wrote that the CBSA would “review the feasibility of adopting this approach in consultation with the necessary stakeholders such as the IRB.”
Position & Rationale
The OFOVC supports the measures under consideration by the CBSA in its consultation that would allow for prescribed conditions to monitor and control non-citizens who are either alleged or determined to be inadmissible to Canada on grounds of security and are not detained or subject to a release order with conditions imposed by the Immigration Division or the Federal Court. Furthermore, the OFOVC is of the opinion that these conditions should be extended to apply to other grounds of inadmissibility outlined in division 4 of IRPA which relate to public safety and security, including: human or international rights violations; serious criminality; criminality; or organized criminality. If non-citizens who are alleged or determined to be inadmissible to Canada are not going to be detained pending the conclusion of their immigration case, then measures should be taken to ensure public safety and security and prevent possible victimization.
Additionally, the OFOVC urges the CBSA to consider measures to ensure that victims’ rights to information, protection, and participation are taken into account as follows:
In circumstances where non-citizens are also federal offenders, the OFOVC recommends that registered victims should receive pertinent information from such time as an offender is referred for inadmissibility proceedings until the offender is deported or relieved of his/her inadmissibility allegation or determination.
Recognizing that there may be exigent situations that can preclude release of information where such release would endanger public safety, an individual, or an organization, the OFOVC recommends that the types of information provided to registered victims should include, but not be limited to:
- notification of transfer between a CSC institution and a CBSA detention facility (advance notification where possible);
- the name and location of the CBSA detention facility in which the offender is being detained;
- notification of transfers between CBSA detention facilities (advance notification where possible);
- advance notification of any release of an offender into the community pending an immigration proceeding, with the name of the community into which s/he is being released, and information related to supervision or imposed conditions (if there are any);
- notification when an offender is relieved of his/her inadmissibility allegation or determination;
- notification for victims when an offender is unlawfully at large while under the jurisdiction of the CBSA;
- notification of any IRB hearings that involve decision making on admissibility or detention of the offender;
- notification when an offender is transferred back to CSC’s jurisdiction; and
- advance notification of the date of removal of an offender from Canada.
Rationale: Currently, in cases where a federal offender has been transferred from the custody of CSC to the custody of the CBSA, victims have no way to find out whether the offender is being detained by CBSA or living in Canada awaiting an immigration review, leaving the victim to wonder and worry. This uncertainty can cause emotional and psychological stress for victims; conversely, a victim who is informed of his/her offender’s status can plan for his/her own personal safety.
Registered victims should be permitted to attend IRB hearings that involve decision making on admissibility, detention, or deportation of the offender, with the opportunity to provide or read an updated statement outlining the impact of victimization.
Rationale: Given that criminality is a factor used to determine if an individual should be deported, victims should be able to have their voices heard in relation to the criminal offence committed against them and provide information for consideration in a decision regarding the deportation of an offender.
Ultimately, victims of crime should have the same rights for information, protection, and participation whether the offender who harmed them is within the corrections and conditional release system or the immigration system. In practical terms, this means that a victim should have the right to information about all pertinent reviews, hearings and decisions related to an offender’s inadmissibility proceedings. The OFOVC would like to see measures that would allow for information sharing between the CBSA and CSC, and by the CBSA, to help ensure that registered victims are provided the information they need for safety planning and to feel more secure. The OFOVC would also like to see measures that would enable victims to have a voice in IRB hearings.
Our Office will continue to encourage the Government to amend legislation to ensure that victims are provided the information they need for safety planning and to feel more secure, and to ensure that they have the opportunity to be considered and heard.Recognizing that our recommendations would involve collaboration amongst the CBSA, CSC, the IRB, and Immigration, Refugees and Citizenship Canada, we would welcome the opportunity to further discuss our submission to this consultation process and to participate in the dialogue.
1 See section 2 of the Canadian Victims Bill of Rights for definition of offence: http://www.parl.gc.ca/content/hoc/Bills/412/Government/C-32/C-32_4/C-32_4.PDF