REFUGEE BOARDS HARSHER IN ONTARIO

Rates of release for detainees vary across Canada

Non-Canadians detained for immigration infractions are almost three times less likely to be released in Ontario than those detained in the rest of Canada, an analysis of internal Immigration and Refugee Board data suggests.

The variance in rates of release between regions are so stark that even the most lenient Immigration and Refugee Board (IRB) decision-maker based in Toronto has a lower release record than the harshest IRB member based in Vancouver.

A statistical analysis by the National Post of all detention review decisions by the IRB over the past four years reveals a vast split in how immigrants and refugees arrested by the Canada Border Services Agency (CBSA) are dealt with in different regions of the country — and by different IRB decision-makers.

The analysis comes amid growing conflict between IRB members and the courts.

Chief Justice of the Federal Court, Paul S. Crampton, recently issued new directives in a ruling that overturned decisions by five IRB members in Vancouver to release a refugee who was deemed to be a danger.

Crampton’s ruling called attention to the reasonableness of IRB detention decisions.

Nationally, from 2013 to 2016, the IRB had an average annual release rate of 18 per cent.

The release rate in its Central region was 11 per cent — notably lower than in its Western region, with a 30 per cent rate, and in its Eastern region, with a 28 per cent rate.

An even wider split is seen in the release records of individual IRB members.

When looking at detention decisions made last year by all currently sitting IRB adjudicators, giving the most recent snapshot of active decision-makers, the divergence is dramatic — from Alice Seifert, in Toronto, who had a six per cent release rate, to Laura Ko, in Vancouver, who had a 39 per cent release rate.

“It’s really unfair that where you are in the country appears to partly determine whether or not you’ll be detained,” said Sean Rehaag, an associate professor at Osgoode Hall Law School who specializes in immigration and refugee law.

“There are some real outlier decision-makers and there should be a conversation about that. This should prompt the IRB to look at whether decisions are made in a fair and balanced way. It shows the need for systemic reforms,” he said.

People appearing for detention review hearings at the IRB are non-Canadians who have been arrested by the CBSA for an immigration matter.

These people do not include those jailed for a criminal code charge; it is only people who, if they were Canadians, would be free to walk the streets but, because they are not Canadians, are subject to the Immigration and Refugee Protection Act. When taken into custody for an immigration infraction, CBSA can detain non-citizens pending a decision on whether they are allowed to remain in Canada.

Detention reviews offer a check for those detained.

The reviews are less formal than court hearings but do mimic a trial’s structure: an IRB member acts as the judge, a CBSA representative acts as a prosecutor and the person detained can argue their own case or hire someone to argue on their behalf.

Regulations allow four reasons to hold someone: The person is considered a danger to the public; is unlikely to appear at future hearings or for removal from Canada; identity is in dispute; or there is evidence they’re involved in terrorism, organized crime, human rights violations or serious criminality.

Like judges at bail hearings, an IRB member can also impose release restrictions on someone, such as regular reporting or posting a cash bond.

When someone is detained by the CBSA, they must have a detention review by the IRB within 48 hours, another after seven days and then one every 30 days until they are released or deported. (For this reason, statistics represent hearing outcomes not individual people, because a single person in long-term detention has dozens of hearings, in some cases stretching over years.)

The National Post used the IRB’s internal data on decision outcomes to calculate release rates for each member and each region over each year of data.

Nationally, the IRB’s caseload has been declining, roughly by 1,000 hearings a year, because fewer cases have been brought forward by the CBSA. In 2013, the IRB held 12,154 detention reviews. By 2016, it had dropped to 9,023 reviews.

Over the same time, the percentage of hearings ending with a person ordered released has climbed. In 2013, 15 per cent of all reviews ended with an order to release the person. It climbed to 17 per cent in 2014 and was 20 per cent in 2015 and 2016.

The regional breakdown of those decisions, however, is where a stark difference emerges. The IRB divides cases into three regions: Central (which is Ontario except for Ottawa); Eastern (which includes Ottawa and everything east of Ontario); and Western (which is everything west of Ontario.)

Year after year, Central has — by far — been the harshest.

In 2013, over 7,894 hearings, only nine per cent ended with a release order in Central, where IRB members are based in Toronto. In 2014 the rate was the same but it climbed to 12 per cent in 2015 and to 15 per cent in 2016.

That contrasts sharply with the Western region, where IRB members are based in Vancouver. In 2013, over 2,141 hearings, 27 per cent ended with a release order in the West. That climbed to 31 per cent in 2014 and dipped to 30 per cent in both 2015 and 2016.

The Eastern region, with IRB members based in Montreal, is aligned with the West. In 2013, over 2,119 hearings, 24 per cent ended with a release order in the East. That climbed to 30 per cent in 2014 and to 32 per cent in 2015 before dropping to 25 per cent in 2016.

Central remains a clear, consistent outlier.

Nationally, the 2016 range of release rates by individual members — from six per cent to 39 per cent — is remarkably wide.

According to the data, Alicia Seifert with a six per cent release record, Mary Heyes (11 per cent), Valerie Currie (11 per cent), Susy Kim (13 per cent) and Karen Greenwood (13 per cent) — all in Ontario — are the five toughest IRB members, in terms of detention outcomes.

At the other end of the spectrum, Laura Ko (39 per cent), Geoff Rempel (32 per cent), Michael McPhalen (31 per cent), Yves Dumoulin (28 per cent), and Leeann King (28 per cent) — all from the West except Dumoulin from the East — are the five most lenient.

The IRB says differences are expected.

“Each case is unique and decided on its own merits in accordance with the evidence and arguments presented in the hearing room,” said IRB spokeswoman Anna Pape.

“The IRB always strives for consistency in adjudication,” she said. “That said, consistency has to be balanced with the need for justice to be done in response to the particular facts in individual cases.”

IRB members hearing these cases are public servants and take part in ongoing professional development and activities designed to promote consistency and quality in decision-making, Pape said.

According to Treasury Board data, IRB members earn from $89,112 a year to $101,892 depending on length of service.

Pape said several reasons could account for Central being such an outlier. For instance, the proportion of people appearing for detention reviews there without a lawyer is higher, she said. Also, it has a higher proportion of cases involving people unlikely to appear than in other regions, and a lower proportion related to identity queries, which are often quickly resolved, she said.

Asked whether IRB members are ever called to task over being outliers, Pape said the IRB does not comment on personnel matters for privacy reasons.

“Members are independent in their decision-making and as such it would be inappropriate for the board to discipline members for their decision-making,” she said.

For the Canadian Council for Refugees, an advocacy group for refugees and vulnerable migrants, the data is troubling.

“It points to the question of whether justice is being done,” said Janet Dench, the executive director.

“If you have similarly situated people and their liberty hangs or falls on the region they are in, it shows the arbitrariness of this.”

IT’S REALLY UNFAIR THAT WHERE YOU ARE IN THE COUNTRY APPEARS TO PARTLY DETERMINE WHETHER OR NOT YOU’LL BE DETAINED. — SEAN REHAAG, OSGOODE HALL