Deportation used to avoid criminal trial, The Lawyers Weekly (May 18, 2015, p. 15)

National security is one of the key objectives of the Canadian immigration legislation. This objective is given effect by preventing the entry of applicants with criminal records, as well removing individuals from Canada for deportable offences. Immigration law has become adjunct to criminal law and it is increasingly being used as a law enforcement tool to permanently remove offenders from our shores. Non-citizens who are alleged to have been engaged in organized criminality or terrorism may be found to be inadmissible to Canada without being charged with criminal offences. This application of immigration law in high-stake accusations is troubling, because it proceeds on a reductionist understanding of crime and punishment theory, as well a much lower standard of proof and rules of evidence, which can include hearsay.

In the wake of the events of September 11,2001, immigration law has been employed as an integral part of the ongoing terrorist and organized criminality investigations. A case in point is the recent arrest of Jahanzeb Malik, a permanent resident who is alleged to have been plotting a terrorist attack against the U.S. consulate in Toronto. Despite this serious allegation, the government chose to prosecute Mr. Malik under the inadmissibility provisions of the Immigration and Refugee Protection Act (“IRPA”) and not to charge him criminally.

The dichotomy between the terrorism-related accusations and refusal to charge an accused criminally might perplex those unfamiliar with the workings of the IRPA. When evidence against the accused is not as cogent to succeed in criminal law forum, the Crown will be reluctant to lay charges. However, the IRPA clothes the Canada Borders Services Agency with powers that permit it to attempt to rid Canada of the alleged terrorist by proceeding via immigration law route, where the evidentiary standard of proof is that of reasonable grounds to believe. This standard requires something more than mere suspicion, but less than standard applicable in civil matters of proof on the balance of probabilities and much less than proof beyond reasonable doubt that applies in criminal law proceedings. In the context of organized criminality, the government may elect to proceed with the immigration prosecution in order to remove the violators despite the fact that the criminal charges against them were either dropped or disposed of in their favour.

It appears naïve to assume that deporting terrorists without criminal persecution and incarceration enhances our safety. Deportations merely re-allocate the problem without creating greater long-term safety, since terrorist activities may be run from abroad. Moreover, in cases where terrorists are being removed to the countries in which they are able to operate more freely, deportation, arguably, defeats the IRPA’s key objective set out in section 3(1)(h): maintaining the security of Canadian society. The current efforts of deporting terrorists create a false sense of security, but provide the platform for advocating for further border security initiatives.

Last December 12, Bill C-4, A Second Act to implement certain provisions of the budget tabled in Parliament on March 21, 2013 and other measures, received Royal Assent. It contains key amendments to the Canadian immigration scheme that will introduce the “expression of interest” system in Canada. It is a two-stage active immigration process, where applicants would be required to, first, submit an online form through the Citizenship and Immigration Canada’s website, which it would then evaluate it against certain criteria. The CBSA also hopes to soon implement a “board/no board” policy, which would allow entry decisions to be made before an individual was allowed to depart for Canada.

The current focus on increased scrutiny at points of entry and heightened removal through the IRPA prosecutions is designed to enhance national security, or at least its perception. While enhanced border controls may reduce the number of criminals entering, they surely cannot prevent offences committed by noncitizens who do not become involved in terrorist or criminal activities until after they were lawfully admitted to live in Canada. Nor does it preclude native-born or naturalized citizens from engaging in terrorism. For example, in June 2006, 18 Canadian-born Muslims were arrested and charged with planning a series of terrorist attacks against selected targets, including the Canadian Parliament buildings and the Prime Minister.

This argument demonstrates that our immigration laws are both too powerful and not powerful enough to provide us with security. As with any great power, exemplified in the context of immigration prosecutions by the right to detain (with or without warrant) and deport noncitizens, there should be greater accountability or it would become subject to easy abuse.

When it comes to the organized criminality, an old adage “tell me who your friends are and I will tell you who you are” takes on a literal meaning, because a person’s mere association with individuals who are believed to have been engaged in activity that is part of a pattern of planned and organized criminal activity may, in certain circumstances, suffice to be found inadmissible to Canada and be deported.

Consequences flowing from the finding of inadmissibility on the grounds of organized criminality or security are harsh, they include: elimination of the statutory right to appeal removal orders; suspension or termination of a claim for refugee protection and, inter alia, removal of an opportunity to seek discretionary relief from deportation order itself.