Toronto Star

CBSA officers discussed how to ‘rattle’ mentally ill detainee

Agency investigat­ing after pair overheard talking about tactics before cross-examinatio­n

- BRENDAN KENNEDY INVESTIGAT­IVE REPORTER

The conduct of two bureaucrat­s working for Canada’s border police is under investigat­ion after they were overheard strategizi­ng about how to “rattle” a mentally ill immigratio­n detainee they were about to question at a hearing.

During a break in the proceeding­s Monday, Andrej Rustja, a hearings officer for the Canada Border Services Agency, was talking to his colleague John Oliveira as they prepared to crossexami­ne Ebrahim Toure — a failed refugee claimant who has spent more than five years behind bars because Canada has been unable to deport him.

“What if we rattle his f---in’ cages right away?” Rustja asked.

“I can ask the softball questions, no problem,” Oliveira said.

Rustja and Oliveira were speaking in an otherwise empty hearing room before the resumption of Toure’s public hearing to determine whether his detention should be continued.

A Star reporter overheard their conversati­on from a separate room where audio and video from the hearing is streamed. The reporter was let into the observatio­n room by staff of the Immigratio­n and Refugee Board.

“Here’s the question I have for you,” Rustja said. “The softball approach — is he more willing to give us something, or if we rattle him is he going to slip up? Or if we rattle him too f---in’ badly, will he clam up?”

Rustja decides they should start with the “softball approach” and then he would “rattle him at the end.”

“Hopefully he’ll slip up and he’ll give us something, you know what I mean?”

After the Star sent questions to the CBSA about the overheard comments, the agency said it was investigat­ing Rustja and Oliveira.

“The CBSA takes these allegation­s seriously, and if confirmed, these actions do not reflect the values of our Agency and its Officers,” spokespers­on Nicholas Dorion said in an emailed statement. Dorion said any employee who “violates standards of conduct” may be discipline­d.

The agency refused to make Oliveira, Rustja or any other employee available for an interview. Toure, Canada’s longest serving immigratio­n detainee, suffers from “major problems” with his mental health — including hallucinat­ions and voices in his head — according to psychiatri­st Dr. Donald Payne, who assessed Toure last year at the request of Toure’s legal team. Payne’s assessment and testimony were given as evidence in Superior Court as part of Toure’s constituti­onal challenge to his indefinite detention. The court accepted Payne’s findings. Toure, who has not been charged or convicted of a crime and is not considered a danger to the public, was prescribed antipsycho­tic medication during the first four-and-a-half years of his detention, which he spent at a maximum-security jail in Lindsay, Ont., before he was transferre­d to the less-restrictiv­e Immigratio­n Holding Centre in October, following his court challenge. The Star was unable to determine whether or not he continues to take antipsycho­tic medication.

Toure’s lawyer, Jared Will, said Rustja’s and Oliveira’s comments demonstrat­e not only a “total lack of respect” for Toure and his “documented mental health issues,” but also a “misunderst­anding of their own role.”

“Rather than admit they cannot deport him and that he’s not responsibl­e for that reality, they continue to seek to demonize Mr. Toure to justify his past and future detention,” Will said. “I think it shows the CBSA’s intransige­nce and undue focus on self-justificat­ion.”

CBSA officials often come to see immigratio­n detainees as “an enemy to be defeated,” Will said, “and they treat them as such.”

Other immigratio­n lawyers not involved in Toure’s case echoed Will’s concerns.

“The comments are clearly inappropri­ate, even in private,” said Ian Sonshine, who said it reflects how the CBSA has “lost touch” with its mandate, which is protecting the public and enforcing immigratio­n laws. “(Their) job is not to try and keep an individual in detention at all costs.”

Liberal Public Safety Minister Ralph Goodale, who is responsibl­e for the CBSA, has repeatedly insisted that his government wants to create a “better” and “fairer” immigratio­n detention system, in which detention is viewed as a “last resort.”

Sonshine said the CBSA officers’ comments illustrate the “serious disconnect” between Goodale’s public statements and the reality on the ground.

Subodh Bharati, another immigratio­n lawyer not involved in Toure’s case, said it’s unclear whether detention reviews are adversaria­l or inquisitor­ial. The lack of procedural rights or rules of evidence — as would exist in a formal court hearing — suggest the detention reviews are strictly inquisitor­ial, he said. But the fact the government is trying to restrict someone’s liberty makes it adversaria­l.

The CBSA can indefinite­ly detain non-citizens on three possible grounds: if they are deemed a danger to the public, unlikely to show up for their deportatio­n or their identity is in doubt. Detention reviews are conducted by the quasi-judicial Immigratio­n and Refugee Board after the first 48 hours, seven days and every 30 days thereafter. CBSA hearings officers, known as “Minister’s Counsel,” act like prosecutor­s for the government, but they usually don’t have any legal background. A government-appointed board member oversees the hearing and decides whether detention should continue or the detainee should be released.

Toure is detained solely on the grounds that the government believes he will not show up for his deportatio­n if they can ever arrange it.

He believes he was born in The Gambia, but he doesn’t have any identity documents to prove it.

The government says he is intentiona­lly thwarting their efforts to remove him, but he says he is willing to be deported and has given them all the informatio­n he has.

Canadian immigratio­n officials have thus far been unable to convince Gambian authoritie­s to issue him a travel document.

His detention review will resume next month.

 ??  ?? Ebrahim Toure is Canada’s longestser­ving immigratio­n detainee.
Ebrahim Toure is Canada’s longestser­ving immigratio­n detainee.
 ?? BRENDAN KENNEDY/TORONTO STAR ?? Ebrahim Toure has spent more than five years behind bars because Canada has been unable to deport him.
BRENDAN KENNEDY/TORONTO STAR Ebrahim Toure has spent more than five years behind bars because Canada has been unable to deport him.

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