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Letter addressed to Mr. Richard Wex, Chairperson and Chief Executive Officer of the Immigration and Refugee Board of Canada concerning victims not being kept informed about removal orders relating to offenders

 

January 7, 2021


Mr. Richard Wex, Chairperson and Chief Executive Officer
Immigration and Refugee Board of Canada
Minto Place, Canada Building
344 Slater Street, 12th Floor
Ottawa, Ontario
K1A 0K1

 

Cc      The Honourable Bill Blair, Minister of Public Safety and Emergency Preparedness
The Honourable David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada

 

Dear Mr. Wex:


I understand that my letter below has been redirected to you by Minister Mendicino. 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

 

 

[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

May 6, 2021

Ms. Heidi Illingworth
Federal Ombudsman for Victims of Crime
Office of the Federal Ombudsman for Victims of Crime
P.O. Box 55037
Ottawa, Ontario K1P 1A1

 

Dear Ms. Illingworth:

I am responding to your correspondence of January 7, 2021, addressed to Mr. Richard Wex, Chairperson and Chief Executive Officer of the Immigration and Refugee Board of Canada (IRB), concerning the sharing of immigration admissibility case information. I apologize for the delay in responding.

Some of the items you have raised fall within the mandate of the Canada Border Services Agency (CBSA), and the Agency has reviewed your proposals. I would first like to commend you on your efforts as the Federal Ombudsman for Victims of Crime. Your advocacy on behalf of victims of serious crime is important, and I wish to assure you that Public Safety Canada will continue to fully support your work within the legal parameters of the CBSA’s mandate.

The Agency is mandated to conduct investigations to identify criminally inadmissible permanent residents and foreign nationals who are incarcerated in federal or provincial correctional institutions; prepare inadmissibility reports against these individuals; and secure removal orders under the Immigration and Refugee Protection Act (IRPA). In addition, the CBSA will issue a warrant for the arrest of these individuals and file an order to deliver an inmate with correctional institutions. Working with Correctional Service Canada (CSC), the CBSA ensures that respective correctional institutions are fully aware that an inmate is of interest to the Agency and is not to be released from custody.

I would like to provide you with a functional description of the CBSA’s activities as they relate to the Canadian Victims Bill of Rights (CVBR). The Agency’s first priority regarding persons deemed inadmissible to Canada is to remove those individuals who pose serious inadmissibility cases, followed by failed refugee claimants, and then by all other non-criminal inadmissibility cases. Everyone ordered removed from Canada is entitled to due process before the law and all removal orders are subject to various levels of appeal, including judicial review. CBSA inland enforcement officers closely monitor the progress of individual appeals. Once it is confirmed that the appeals have been exhausted, the Agency will proceed with removal preparations as quickly as possible.

A portion of the CVBR legislative package provided information-sharing provisions that enable CSC to provide notification to registered victims of crime when a foreign offender is removed from Canada by the CBSA. CSC is legislated to share this information with the registered victims of crime. To facilitate this work, the Agency ensures that all relevant file information is uploaded and available for reference on CSC’s Offender Management System (OMS). CBSA officers enter updated information into the OMS immediately upon a removal being completed.
However, it should be noted that the Agency also has a Criminal Investigations program that investigates the criminal provisions found in IRPA. These criminal investigations are covered by the CVBR, and information about any criminal charges can be shared with the registered victims of the crime as described in the CVBR.

In preparing this response, we have also consulted with the IRB, which has advised the following with regard to the work of its Immigration Division (ID) and Immigration Appeal Division (IAD). Decision-makers at the ID are required at a detention review to consider whether a detained individual poses a danger to the public. That includes the possibility of danger to any victim of a previously committed crime. Therefore, consideration is already being given to this matter by the ID. In addition, on presentation of evidence by a party, the IAD is required to consider any information on how its decision may impact the health and safety of a victim. Given the role of the CBSA in providing information to the IAD relating to the offence, the IAD does not see itself as having a role in notifying the victim of an appeal, and it would be best left to the CBSA to respond to such a disclosure request.

In terms of expanding the provisions for the sharing of information currently held by the CBSA, the Agency’s regulatory options limit implementation of this proposal. At this juncture, members of the public, including those identified within the CVBR, can make enquiries regarding the CBSA’s processes and files; however, the information that can be released is subject to Access to Information Act and Privacy Act provisions. The Privacy Act allows for public interest disclosures of personal information, in this case to victims of crime. However, information cannot be disclosed unless it meets one of the specific exemptions under the Act or is otherwise publicly available.

While I would be pleased to discuss this further with you, at this time the CBSA does not have the legislative authority to engage in information sharing as suggested in your request. As you have already shared your correspondence with the Honourable David Lametti, Minister of Justice and Attorney General of Canada, I will defer to his considerations on your request, as the Attorney General is the federal lead for the CVBR. If you wish to discuss this matter further, I will ensure that I am available.

 

Yours sincerely,

 

 

John Ossowski
President
Canada Border Services Agency (CBSA)