July 24, 2018 Right Hon. Justin Trudeau, Prime Minister of Canada

July 24, 2018

Right Hon. Justin Trudeau, Prime Minister of Canada Hon. Ahmed Hussen, Minister of Immigration, Refugees and Citizenship Canada Hon. Ralph Goodale, Minister of Public Safety and Emergency Preparedness Hon. Robert Oliphant, Chair of the Standing Committee on Citizenship and Immigration IRCC Critics, Hon. Jenny Kwan, Hon. Michelle Rempel and Hon. Mario Beaulieu MPSEP Critics, Hon Pierre Paul-Hus and Hon. Matthew Dubé

Richard Wex, Chair of the Immigration and Refugee Board Roula Eatrides, Deputy Chair of the Immigration Division

CC: Cabinet

RE: Immigration Detention Review Audit

We are fifty lawyers writing in reply to the Report of the 2017/2018 External Audit (Detention Review) commissioned by the Immigration and Refugee Board (IRB) and to the Board’s response.1

The Immigration Division (ID) of the Immigration and Refugee Board is charged with ensuring the legality and constitutionality of immigration detentions. Its officials are civil servants who are rarely lawyers. After serious questions were raised about the quality of the ID’s work, it commissioned an internal audit.2 The results of that audit, released on Friday afternoon, are seismic and of national importance: the ID is a broken institution that cannot be trusted to make decisions about people’s freedom.

1 Immigration and Refugee Board, IRB’s Management Response and Action Plan – Detention Review under the Immigration and Refugee Protection Act, online:

2 See, eg, Brown v. Canada (Citizenship and Immigration), 2017 FC 710; Scotland v. Canada (Attorney General), 2017 ONSC 4850; IRB, “Immigration and Refugee Board of Canada to carry out audit of long- term detention reviews” online:

With devastating clarity, the audit establishes that the ID has failed and continues to fail to meet its constitutional and statutory mandate. It documents the ID’s incompetence, from adjudicators to management. The audit details how the ID has justified, legitimized, and caused one of the most serious and ongoing human rights crises in this country.

“What appears to be missing at the ID,” the audit finds, “is a shared tribunal culture that values excellence across the board in the conduct of fair and accessible hearings and in the quality and consistency of decisions.” In other words, the ID lacks nearly every recognizable element of a competent administrative tribunal in Canada. And this is a tribunal that has the power to hold people in prison for years.

The ID cannot feign surprise at the findings of the auditor. There is nothing new here: it is a blistering collation of the same observations and conclusions that media, lawyers, activists and judges have made for years.

The buck must stop somewhere, and those who are complicit in this mass violation of basic rights must be held to account. The debt is now too large to be ignored. These concerns are not trivial: they involve the loss of people’s freedom, dignity, minds and lives. Consider these shocking stories identified in the audit:

• One man “suffered a complete mental health breakdown and was held in a catatonic state for over three years.” The silence and confusion of his broken mental state was held against him as a sign of non-cooperation and grounds for continued imprisonment; • Another was prevented from presenting a release plan that would allow for mental health treatment. The audit poignantly notes that in that moment, the ID “sealed this young man’s fate,” leading ultimately to deportation “to one of the most dangerous countries in the world, a country where he had not lived since early childhood and where he had no family and did not speak or write the language;” • The absence of decency shocks. The audit found that detainees were subjected to shifting and mistaken justifications for their detention. When the imprisoned gave up or spoke out about inconsistencies, they were chided for their ignorance of the process. • Instead of demonstrating concern for ongoing lengthy detentions, adjudicators allowed hearings to become embarrassingly perfunctory. “It was not unusual in the cases reviewed,” the audit found, “for the detained person to become frustrated with the process; to stop speaking at hearings or to stop attending at all, sometimes for months at a time. These hearings would often be completed in five minutes or less.”

Adjudicators who do not understand “the most basic tenets of procedural fairness” or the burden of proof have no business doing this work. Nor do those whose gross negligence or incompetence has cost people their freedom; who have invented a “‘dangerous offender’ designation without any of the safeguards of that process in the criminal justice system;” who have silenced people desperately trying to give evidence for their own release; who have trivialized mental illness or the experience of months or years of incarceration; nor do those who have ceded their independence to CBSA bullying and misrepresentation.

In addition to the officials who sit on the detention reviews, the audit makes it clear that equal blame is found in the ID’s management. The ID is tasked with administering the single most serious power possessed by the Canadian state – to effect the deprivation of liberty. It is now clear that, despite decades in business, it has failed to implement basic systems to properly administer or supervise its mandate. The shocking simplicity of the auditor’s recommendations on this point – essentially: have meetings, work towards resolution, make guidelines, properly triage and document files, etc. – reveal that the ID has been a rudderless ship oblivious to the havoc it has wrought.

But for the auditor’s intervention and the continued interest of the media, too much would be hidden from the Canadian public. Take one example: save for refugee claimants, hearings under the IRB are presumptively public, but every week the ID conducts secretive detention reviews in the bowels of prisons on maximum security ranges. No reporter or family member is allowed to attend. Despite assuring the auditor that the practice of interviewing or taking testimony from bondspersons, out of earshot from unrepresented detainees, has stopped, we know the contrary to be true.

Imagine what a more comprehensive audit, not limited to twenty long-term files, but including the thousands of unexamined deportation hearings and first order detention reviews, would show. As lawyers, we have seen the ID’s grievous errors and injustices on individual clients. Now, through this audit, we recognize those ills collectively and in full view.

We have no confidence in the ID’s ability to reconstitute itself with the same actors fumbling their responsibility to decide people’s liberty. This is not the time for more workshops or a graduated implementation of recommendations. This is not the time for more second-quarter trainings or, in the IRB’s words, to “revitalize the adjudicative culture.”

This is the time for resignations. The institution is broken and the people who work in it are not fit for the job of reform. Look no further than their now-documented past performance for proof. At least in Ontario, where most of the cases studied in the audit occurred, the entire ID is implicated; all should resign. As those of us who appear before the ID know, the decisions of the ID officials that were audited are representative of the decisions of the entire division. The damage they do is now in the public view. They must be held accountable.

What is required is clear: virtually every other tribunal with the power to incarcerate in this country employs independent, legally-trained adjudicators. So should the ID. This is not the time for a marginally improved Immigration Division with the same members, management and staff. This is the time of the Immigration Division as we know it to end.

The undersigned:

SIMON WALLACE REBECCA LOCKWOOD CLIFFORD McCARTEN ALIA ROSENSTOCK BARBARA JACKMAN JULIE BEAUCHAMP GUIDY MAMANN LILY TEKLE SUBODH BHARATI SHEAU LIH VONG HILLARY EVANS CAMERON MAIA ROTMAN GERALDINE SADOWAY AURINA CHATTERJEE AADIL MANGALJI LINDSAY SENESE ELIZABETH LONG PREEVANDA K. SAPRU JOSHUA BLUM KEITH MACMILLAN JAMES GILDINER ROXANA PARSA CONSTANCE NAKATSU DEVIN MacDONALD TYLER GOETTL VINO SHANMUGANATHAN AISLING BONDY HANNA GROS CHERYL ROBINSON JOSEPH GRANTON JESSICA NORMAN GENEVIÉVE RYAN ASHLEY FISCH MEERA BUDOVITCH REBEKA LAUKS JOHN GUOBA ESTHER LEXCHIN ADAM HUMMEL KATE FORREST ZIAH SUMAR STELLA IRIAH ANAELE CAITLIN MAXWELL CELESTE SHANKLAND JANET MCGILL DEBBIE RACHLIS AMEDEO CLIVIO NASTARAN ROUSHAN ALI ESNAASHARI ALEKSANDAR JEREMIC LUKE McCRAE

Reply attn: p. 416 363 1696 f. 416 363 4089