Latest death in Canada Border Services custody shows independent oversight needed
By Josh Paterson and Lorne Waldman
Recently, the media reported the death of a Nigerian man in the custody of the Canada Border Services Agency (CBSA). While the precise circumstances that lead to his death remain unclear, media reports suggest that the federal government was deporting him after he lost his long legal fight to remain in Canada, and that he strongly feared he would be killed if he were deported to Nigeria.
There are many unanswered questions about this death of this person who was supposed to be in the care and custody of CBSA. Reports suggest that there was a struggle. How did that struggle get so out of hand that it became lethal? Did the officers attempt to de-escalate the situation, or did they resort inappropriately to the use of force?
CBSA’s duty is to do everything in its power to ensure that its detainees are safe, and this death once again raises the question as to whether CBSA failed in its duty to protect those who are in its care. The public is entitled to know whether CBSA took appropriate measures to protect the safety of the deportee and what were the circumstances behind the altercation, even if the police conclude no crime was committed. While the Calgary Police are investigating the incident, their job is limited to determining whether or not a crime was committed. They have no authority to go deeper and investigate whether CBSA officers violated their own code of conduct in their handling of this tragic situation.
This isn’t the first death in CBSA custody; there have been at least 14 deaths of persons detained by CBSA since 2000. In 2016, after two deaths in CBSA custody in the space of a week, human rights organizations urged the government to create an external oversight agency to ensure that tragic incidents, and allegations of CBSA misconduct, were independently investigated. Public Safety Minister Ralph Goodale promised that the federal government would create such a body, ending CBSA’s problematic status as the only major law enforcement agency in Canada without an external accountability agency. The government engaged an outside consultant to provide it with advice on creating an agency, and Goodale repeated the promise publicly in December 2017. The federal government again repeated the promise in the wake of the recent tragedy, but the government has taken no concrete public action more than two years after its 2016 promise.
This death in custody highlights the government’s failure to fulfil its promise to provide oversight to CBSA. CBSA wields a wide range of police powers and deals with some of the most vulnerable people in Canada. Its agents also act as prosecutors for the federal government in refugee and other hearings. A federal audit recently revealed that CBSA officers have behaved inappropriately in carrying out those duties on the government’s behalf, including using inaccurate evidence and intimidating immigration tribunal members. The audit, together with the news of the death in custody, reinforces the position that there is an urgent need for an accountability body for CBSA. It must be able to review the full range of CBSA’s conduct, whether at the border, inland, or in hearings.
Because of the federal government’s inaction, CBSA is left to investigate its own conduct in this death without any external review. If this man had died in the custody of any other police force in Canada, there would have been an independent review. It is deeply disappointing that CBSA continues to be the exception to the rule several years after the government promised to fix that problem.
Josh Paterson is a lawyer and the Executive Director of the BC Civil Liberties Association. Lorne Waldman is a refugee lawyer and past president of the Canadian Association of Refugee Lawyers.