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Letter to the Honourable Marco Mendicino, Minister of Immigration, Refugee and Citizenship on respecting victims in the context of removals due to criminality

 

October 23, 2020

 

The Honourable Marco E. L. Mendicino, P.C., M.P.
Minister of Immigration, Refugees and Citizenship
365 Laurier Avenue West
Ottawa, ON  K1A 1L1

 

Dear Minister Mendicino:

 

Re: Respecting victims in the context of removals due to criminality

As the Federal Ombudsman for Victims of Crime1, my office has received numerous complaints from victims concerning the fact that they are not kept informed about the process surrounding removal orders relating to offenders who have committed crimes against them.

Victims mention feeling re-victimized by the whole process and often find that they are unable to even determine what agencies, such as the Canadian Border Services Agency (“CBSA”), the Immigration and Refugee Board of Canada (“IRB”), including the Immigration Division (“ID”) and the Immigration Appeal Division (“IAD”) are responsible for steps in the process of removal of offenders on the basis of criminality. I am writing this letter in the hopes of working with your Ministry to set up policies and procedures that will keep victims informed of the various steps taken during a removal order based on criminality, and to ensure that victims’ interests are respected throughout the process.

I want to be clear that I am well aware that the removal process based on criminality is not meant to be a further punitive measure towards an offender. I am aware that the purpose of the provisions of the Immigration and Refugee Protection Act (“IRPA”) dealing with removals is meant to promptly remove inadmissible individuals from Canada, as opposed to meting out further punishment. However, there are important victims’ interests engaged throughout this process that are relevant and should be considered. It is clear that one of the purposes of the IRPA is “to protect the health and safety of Canadians and to maintain the security of Canadian society”. A victim certainly qualifies as a member of Canadian society whose safety and security interests can be engaged in an IRPA removal process. There are certain points throughout the process at which a victim may require information for the purposes of safety planning.

Furthermore, some other factors that may be relevant with respect to removal orders, including the seriousness of the offences and the possibility of rehabilitation of offenders may engage victims’ interests. A victim clearly has an interest in ensuring that decisions taking into account the seriousness of offences are based on all relevant information. With respect to issues of rehabilitation, a victim may have an interest in ensuring that restitution orders are fulfilled. A victim’s interest will not always be in having an offender removed, as it may be in a victim’s best interest to have an offender remain in Canada, in order to fulfil a restitution order.

Below are some of the steps and processes at which a victim’s interests may be engaged. I am making some suggestions as to steps that could ensure that victims’ interests are respected in these processes.

Step/process

Protection steps

CBSA officer’s report pursuant to section 44 of the IRPA

I suggest that a victim should be notified when a CBSA officer is considering making a section 44 report, and of the result of such a report. Since important considerations in this process include the seriousness of the offence(s) and protection of the public, victims should be involved in the process to ensure that the appropriate official has the relevant information.

Minister’s Delegate (“MD”) review and decision pursuant to section 44 of the IRPA

I suggest that a victim should be notified when a referral is made to an MD pursuant to section 44, and be provided with the results of such a referral. Once again, since important considerations in this process include the seriousness of the offence(s) and protection of the public, victims should have some process to ensure that the MD has the relevant information.

Referral to ID for removal hearing

I suggest that a victim should be notified when a matter is referred to the ID for a removal hearing based on criminality. Since these are public hearings a victim should be notified of the time and place of the hearing and the result of the hearing.

Appeal from the ID to the IDA relating to a removal for criminality

I suggest that a victim should be informed, if there is an appeal to the IAD of a removal order.

Offender’s appeal of a Certificate of Removal

I suggest that a victim should be informed if an offender appeals the reasonableness of a Certificate of Removal to the Federal Court of Appeal.

Request for a stay

I suggest that a victim should be given notification of a request for a stay of a removal order.

I suggest that because the seriousness of the offence(s) and the possibility of rehabilitation are well-recognized factors in the determination of whether a removal order for criminality should be stayed, a victim should be entitled to ensure that the relevant information on these points is before the IAD.

Appeal of a removal order

I suggest that a victim should be informed if an appeal is sought with respect to a decision by the IAD with respect to a removal order or a stay of a removal order, where such an appeal is available.

Judicial review of a removal order

I suggest that a victim should be notified if an offender seeks a judicial review of any of the ministerial or administrative decisions related to removal orders related to criminality.

Release of offender on immigration release

I suggest that a victim should be informed if, at any point during a process relating to a removal order, an offender is released on an immigration release. I also suggest that the safety of a victim should be a serious consideration prior to the release of an offender pending the immigration process.

 

The current system in which the interests of victims are not respected in the context of removal orders based on criminality is causing unnecessary suffering to victims and they view it as lacking transparency. I believe that addressing the issues outlined above will assist in ensuring that the interests of victims, whose health, safety and security as Canadians, are protected and respected in the context of removal orders related to criminality.

I would be pleased to meet with you and your officials to further discuss these issues and work together.

Yours very truly,

 

Heidi Illingworth
Federal Ombudsman for Victims of Crime


Cc      The Honourable David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada


1 The Office of the Federal Ombudsman for Victims of Crime is an independent resource created in 2007 to identify emerging and systemic issues that negatively affect victims of crime and recommend ways that the federal government can make its laws, policies and programs more responsive to victims’ needs.

 



Response


January 4, 2021

2020-01143793

Dear Heidi Illingworth:

 

Thank you for your correspondence of October 23, 2020, regarding victims of crime and their interests in the context of the removal from Canada of offenders who have committed crimes against them.

I appreciate you sharing your recommendations on this important matter. Please be assured that Immigration, Refugees and Citizenship Canada (IRCC) is committed to ensuring the safety and security of Canadians.

However, the issues you have raised do not fall specifically within IRCC’s mandate. As such, I have taken the liberty of forwarding your correspondence to my colleague, the Honourable Bill Blair, Minister of Public Safety and Emergency Preparedness, and to Richard Wex, Chairperson and Chief Executive Officer of the Immigration and Refugee Board of Canada, for their consideration.

Thank you for taking the time to write.

Yours sincerely,

 

The Honourable Marco E.L. Mendicino, P.C., M.P.
Minister of Immigration, Refugees and Citizenship

 

c.c.: The Honourable Bill Blair, P.C., M.P., Minister of Public Safety and Emergency Preparedness
The Honourable David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada
Richard Wex, Chairperson and Chief Executive Officer, Immigration and Refugee Board of Canada