Canada has a complex, contradictory and unproductive process to remove non-citizen criminal and security deportees, writes Scott Newark.
By Scott Newark, April 12, 2018
It’s never a good thing for public confidence when a public system is revealed as saying one thing but actually doing something else. This disturbing reality has recently been exposed about Canada’s non-citizen deportation and removal program thanks to some excellent reporting by Stewart Bell and Andrew Russell.
After making some Access to Information and Privacy requests to the Canada Border Services Agency, the Immigration and Refugee Board and Global Affairs Canada, these investigative journalists have confirmed publicly what was a well-known Ottawa ‘secret’ – that being ordered deported from Canada is not the same thing as being removed from our country. The series of articles focused on persons ordered deported for criminality or security reasons. These are the non-citizen deportees that most Canadians would appropriately assume are the highest priorities for removal by our federal government including with specially authorized measures to expedite their removal. While the assumption is logical; the reality is anything but.
The process for removing a non-citizen from Canada begins with a finding of ‘inadmissibility’ under various defined grounds pursuant to the Immigration and Refugee Protection Act (IRPA). This process only begins when a non-citizen is ‘reported’ to the Minister as being inadmissible. Security related and organized crime inadmissibility are subjective determinations, while criminality and serious criminality determinations are based on objective facts of criminal convictions or sentences. In both cases, there are multiple steps involved in the inadmissibility determination, which creates the potential for both inefficiency and delay.
The process also requires consideration of other subjective circumstances, including whether the deportee is at risk of harm or abuse if returned to their country of origin. The Minister is also vested with an overarching discretion whether to overrule the removal on subjective ‘humanitarian and compassionate’ grounds. All with the potential of multiple appeals or reviews. Beginning to get the picture? Unfortunately, it gets worse.
Canada must have the cooperation of the person’s country of origin in order to remove that deportee. That means attaining assuredness of where the person is actually from. As the Global News investigation revealed, that’s not always possible in today’s mass migration world. Of note, the entry and refugee approval decisions made previously don’t require that certainty and are clearly not made in consideration of the potential need for removal years later. That disconnect needs to be corrected.
We also shouldn’t forget the domestic consequences arising from our inability to effectively remove these non-citizen criminals.
There’s more. Not surprisingly, some countries of origin, especially Jamaica, Cuba, India, China and East African countries are not exactly keen on seeing their long departed and now criminal citizens return ‘home.’ When these countries of origin refuse to co-operate and issue travel documents, the result is inevitably delay and even failure to remove these foreign criminals.
We also shouldn’t forget the domestic consequences arising from our inability to effectively remove these non-citizen criminals. All too frequently, they continue to commit crimes against Canadians.
I first encountered this reality back in 1994 while serving as the Executive Officer of the Canadian Police Association. A young Toronto Police officer, Cst. Todd Bayliss was murdered by a non-citizen career criminal from Jamaica named Clinton Gayle. I discovered that Gayle had been released from his previous criminal sentence and was ultimately granted bail following another finding of criminal inadmissibility and a removal order. Gayle was subsequently released because of systemic delays including non-cooperation from Jamaica. After being released, Gayle returned to his drug dealing gang activities where he ultimately shot and killed Cst. Bayliss who was doing his job by protecting the people of Toronto. His case is not the only one of its kind and yet 24 years later we are still struggling with this issue.
Compounding these immigration and deportation issues in criminal deportation cases, which includes non-citizens convicted of terrorism offences, is the reality that the removal process must interact with both the corrections and parole processes which have their own rules and procedures.
These different systems include a number of incongruities. For example, they entail eligibility for early release from sentences to help ‘re-integrate’ the offender into Canadian society, even though the deportation order is expressly contradictory to that purpose. Also, they permit non-citizen offender/deportees a veto over their transfer to their country of origin. And they also prevent removal of criminal deportees who commit new crimes until they are prosecuted and serve their new sentence. That creates an incentive for non-citizen criminal deportees to commit new crimes to prevent their removal.
In summary, Canada has a needlessly complex, contradictory, siloed and unproductive process to remove non-citizen criminal and security deportees from the country. Fixing it will not be easy but Canadians deserve an improved and more effective system where success is measured by actual removals and non-re-entry.
Canada has a needlessly complex, contradictory, siloed and unproductive process to remove non-citizen criminal and security deportees from the country.
A number of actions should be considered in designing and implementing a new removals strategy. We need to improve the inadmissibility reporting process to ensure that all peace officers as defined in IRPA, CBSA Act and the Criminal Code are authorized to report inadmissibility cases and initiate the removals process. And, by creating inter-agency groups (law enforcement, Crown, CBSA, CSC), we would be able to target intended deportees to get supporting process going immediately upon charge rather than waiting for conviction or release from custody.
The objective criteria for criminal inadmissibility also needs to be clarified, based on defined offences, sentences imposed, or multiple convictions with review or appeals restricted to confirmation of criteria. Ministerial discretion on humanitarian and compassionate considerations should have a defined submission process, with appeal restricted to compliance with those issues.
It would be useful to consider giving sentencing judges the discretionary authority to order deportation on qualifying offences with any appeal thereafter being restricted to the criminal appeal process (as Ireland currently does). Equally important, we should consider restricting appeal of Ministerial discretion decisions to procedural compliance rather than substantive review.
The Pre-Removal Risk Assessment process should be revised – by designating countries that are exempted from the process and restricting application to state sponsored risk while specifically requiring consideration of any international agreements assuring no abuse of returning deportees. Electronic monitoring should also be used on criminal/security deportees if released before removal.
We need to require the confirmation of citizenship from home country (supported by biometric ID) on admission from 'problem' countries, and be willing to suspend foreign aid to countries that refuse to cooperate in return of deportees and, if necessary, imposition of visa restrictions.
The Corrections and Conditional Release Act (CCRA) and IRPA needs to be amended to deny parole for non-citizen criminal deportees except for immediate removal. Amendments to CCRA and IPPA should also allow removal of criminal deportees prior to prosecution and completion of new sentence for new crimes committed. That would eliminate incentive to commit new crimes. S. 8 of the International Transfer of Offenders Act should also be amended to remove the requirement of offender consent for transfer to country of origin to complete a sentence imposed in Canada and authorize funding transfer to foreign authorities to cover costs.
A face recognition biometrics ‘bad guy’ lookout system can be deployed at ports of entry to detect and prevent entry to Canada of persons inadmissible to Canada on criminality and security related grounds, including those already removed from the country.
Improving the efficiency of removing criminal and security deportees will be a complex task with competing interests at play.
Statistical reporting should also be revised to include (a) a number of crimes committed by persons already eligible for or subject to criminal or security deportation or who were removed but have returned, and (b) the number of persons ordered deported on criminal or security grounds and who have actually been removed
Ensuring removal of security deportees involves different challenges as in many cases the relevant activities or associations took place years ago in different countries which means a process that includes fact finding and subjective assessments.
Understandably, in our Charter governed processes, this means increased reviews and appeals which means increased delay. The Global News investigation exposed the case of Issam Al-Yamani who was found to be a member of a designated terrorist organization and ordered deported to Lebanon in 2005. Al Yamani claims he faces harm if returned to Lebanon – even though he visited there safely after his deportation process started in 1992. Al Yamani remains in Canada.
Legislative changes were made in 2013 to try and reduce delay in security removals but Global News reports that since 2015, 70 deportation orders on security grounds have been made but only 14 people were removed. It is clear that more needs to be done, including by exercising pressure on countries that prefer not to have these people return.
Improving the efficiency of removing criminal and security deportees will be a complex task with competing interests at play, including within different federal Departments and Agencies. Additionally, Canadian legal processes must be Charter compliant, which means review, discretion and a right to be heard in some form. As always, informed and circumstance targeted legislative clarity is the best way to proceed.
At the same time, it is also appropriate that the system includes some discretion to permit distinguishing between persons that arrived in Canada as infants and those who responded to our welcoming generosity by embarking on a criminal career. The Global News investigation gave the example of Faulino Deng who committed his first violent crime months after entering Canada in 2003 from Sudan and who remains in Canada despite accumulating dozens more criminal convictions.
Similarly, upon expected conviction, expedited removal should be the goal in the case of supposed Somali refugee, Abdulahi Hasan Sharif, who arrived here in 2012 and is now charged with multiple crimes arising from a vehicle and knife attack in Edmonton last year.
These are important issues for the integrity and public confidence in our immigration and criminal justice systems. Improving systemic performance will be a complex issue with competing interests but as this analysis demonstrates, improvements are possible and need to be considered because the status quo is not acceptable.
Scott Newark is a former Alberta Crown Prosecutor who has also served as Executive Officer of the Canadian Police Association, Vice Chair of the Ontario Office for Victims of Crime, Director of Operations for Investigative Project on Terrorism and as a Security Policy Advisor to the governments of Ontario and Canada. He is currently an Adjunct Professor in the TRSS Program in the School of Criminology at Simon Fraser University.
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