Toronto Star

No condemnati­on for ‘vigilante’ border agent

Ottawa silent on officer’s testimony as detainee faces deportatio­n

- BRENDAN KENNEDY SOCIAL JUSTICE REPORTER

The Canadian government is silent on the actions of one of its border agents who has been accused of illicitly obtaining potentiall­y fraudulent identity documents to deport a longtime immigratio­n detainee.

Dale Lewis, a Canada Border Services Agency officer, testified Friday to the Immigratio­n and Refugee Board that he communicat­ed with Gambian authoritie­s on his personal email and WhatsApp, without explanatio­n; may have deleted or lost some of that correspond­ence; relied on informatio­n from a confidenti­al informant whose identity was known only to him; had never read CBSA’s policy on confidenti­al informants; and generally kept very few investigat­ive records. His evidence was often confusing and contradict­ory.

The CBSA said it could not comment on Lewis’s testimony.

“Where any suspicion of improper behaviour by a CBSA employee arises, it will be thoroughly investigat­ed and acted upon accordingl­y,” a spokespers­on for the agency said via email. “The CBSA would never knowingly remove a person from Canada using a fraudulent document or a fraudulent­ly obtained document.”

Public Safety Minister Bill Blair, whose ministry is responsibl­e for the CBSA, declined an interview request for this story. His spokespers­on would not answer specific questions about Lewis’s testimony and instead emailed a 241-word statement that said, in part, that CBSA officers are bound by the law and the agency’s policies: “Most officers carry out their work profession­ally, but when an officer does not, they must be held accountabl­e for their actions.”

The detainee’s lawyer said Lewis’s testimony is grounds for a police investigat­ion.

“The testimony came out on Friday,” said Jared Will, who is representi­ng Ebrahim Touré. “I would have hoped by now that the RCMP would have secured a warrant to search and seize Officer Lewis’s phone and email to make sure that those records were not destroyed because if he did a number of things that it appears he has done, that would be not only outside of the scope of his job, but also potentiall­y criminal, and there was enough said on the record to warrant an investigat­ion into that.”

Lewis gave the testimony in a detention review hearing for Touré, a failed refugee claimant, who is scheduled to be deported to Gambia next month. Touré, who previously spent five-and-a-half years in immigratio­n detention, was ordered released by the quasi-judicial tribunal on Wednesday morning, in part because the presiding board member found Lewis’s evidence lacked credibilit­y.

The CBSA is still planning to deport Touré, who will be subject to electronic monitoring as part of his release conditions. The agency wanted to keep the 49-year-old — who they have been trying to deport since 2013 — in detention pending his removal on Dec. 11.

At the hearing, held over four days by telephone conference, Will raised questions about the authentici­ty of the birth certificat­e and passport the CBSA acquired for Touré, citing irregulari­ties in the documents themselves and Lewis’s lack of corroborat­ing evidence for how he obtained them. Will described Lewis as a “vigilante” with a “willingnes­s to go rogue.”

The CBSA’s representa­tive at the hearing did not explain or defend Lewis’s actions in her closing remarks on Tuesday.

“We can infer what we want to infer from that,” Will said in an interview on Wednesday. “She didn’t think there was anything to say about it.”

In its written response to questions, the CBSA said in “rare instances” when operating in foreign countries, “officers may need to rely on personal email or other messaging applicatio­ns to conduct government business.” The spokespers­on could not immediatel­y provide an example of such an instance.

Jean-Marc McCabe, the immigratio­n board member who ordered Touré’s release, made no comment in his decision about the authentici­ty of the documents or how Lewis obtained them.

“It is not for me to direct how removals officers carry out their duties,” he said at one point in his decision. McCabe said determinin­g those questions was outside his jurisdicti­on and beyond the scope of the hearing, which was merely to decide whether Touré should be detained while he awaits removal. Touré would have to seek a stay of removal from the Federal Court if he wanted to stop his deportatio­n on the grounds that the documents were fake, McCabe said.

At the hearings, the CBSA provided no corroborat­ing evidence to show how Lewis obtained the documents. Will argued that the agency breached Touré’s Charter rights by not disclosing the informatio­n, calling it “disgracefu­l, unlawful and unconstitu­tional.”

McCabe did not make a ruling on the Charter argument. He did, however, exclude Lewis’s testimony regarding what he said occurred in two interviews with Touré on Nov. 2 and 4.

The CBSA refused to disclose Lewis’s notes from the interviews and McCabe said the lack of corroborat­ion meant Lewis’s testimony didn’t meet the tribunal’s standard for “credible and trustworth­y” evidence.

Will said it was disappoint­ing that the member didn’t explicitly condemn Lewis’s conduct or make a decision on the disclosure argument, but “all in all it’s the outcome we were hoping for.”

The CBSA’s representa­tive at the hearing did not explain or defend the agent’s actions in her closing remarks

 ?? BRENDAN KENNEDY TORONTO STAR ?? Ebrahim Touré, a failed refugee claimant, is scheduled to be deported to Gambia next month.
BRENDAN KENNEDY TORONTO STAR Ebrahim Touré, a failed refugee claimant, is scheduled to be deported to Gambia next month.

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