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Don’t sacrifice procedural fairness in fight against crime

The CBA’s Immigration Law Section concerned by proposal that would make facts established through criminal prosecution binding on immigration decision makers.

Police line, do not cross tape

Eradicating organized crime and gang activity in Canada is a noble and worthy goal, but it can’t be done at the expense of procedural fairness in immigration matters, says the Canadian Bar Association’s Immigration Law Section in a letter to the Canada Border Services Agency.

The Section is concerned by a proposal to amend regulations to the Immigration and Refugee Protection Act, or IRPA, that would make “facts established through the prosecution of certain specific organized crime-related offences in the Canadian criminal justice system binding on immigration decision makers.” Mainly that such a change would compromise procedural fairness and individual rights.

Challenging evidence in the immigration context is fundamental to Canada’s immigration system, the Section writes, including enforcement of IRPA. The problem with the proposal is that the Immigration and Refugee Board is not bound by the same rules of procedure and evidence as a criminal court.

“Facts derived under the jurisdiction of the Canadian Criminal Code cannot be automatically applied to the immigration context under the jurisdiction of the IRPA and used to prejudice the rights of an individual facing admissibility allegations,” the letter reads. “Immigration admissibility hearings are more fact driven than many other adjudication processes. Staving off the introduction of relevant evidence, including exculpatory evidence, runs contrary to the rules of procedural fairness and natural justice.”

Compounding the problem is that many people facing the kinds of criminal allegations that could lead to findings of inadmissibility are self-represented. Lacking in resources, many may opt to accept plea bargains and not challenge all the allegations. “The CBSA proposal would deprive a person of the opportunity to challenge the evidence in the immigration context, compromising their right to a fair proceeding. This may also undermine their right under section 7 of the Charter to life, liberty and security of the person,” says the Section.

Another concern is the source of the information that may be used under this proposal. Evidence derived from law enforcement agents of a country where torture is an acceptable practice, for instance, could be difficult to challenge.

The CBA Section is also worried that exculpatory evidence that comes to light after a criminal ruling that could form the basis of an appeal may not be admissible in the immigration context under the proposal. “This is an inherent breach of the rules of procedural fairness and natural justice.”

The Section supports the goal of eradicating organized crime and gang activity in Canada. “However, the Regulatory Impact Analysis Statement does not show how the proposed changes would achieve these results,” it says, adding that the proposed changes would compromise procedural fairness in Canada’s immigration system.