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The Ghanaian News January 2012
IMMIGRATION AND SOCIAL ISSUES By: James A. Kwaatemg, B.A. (Hons), LLB (Hons)
Port of Entry Examinations and Examinees’ Right to Counsel The issue of right to counsel and counsels’ involvement in port of entry examinations has been discussed in an article published in 2009. However, the topic is being revisited in view of the continued misapprehension and controversy surrounding it. As indicated in my previous article on the issue, section 18(1) of the Immigration and Refugee Protection Act (IRPA) provides that all persons seeking to enter Canada, including Canadian citizens, must be examined to determine whether they have a right to enter Canada or whether they may be authorized to enter and remain in Canada. In almost all cases, even if an examination is done outside Canada, another examination is conducted at a port of entry. The port of entry examination may include a primary and a secondary examination. Primary examinations are done by a Border Ser-
vices Officer (BSO) at the Primary Inspection Line (PIL) while secondary examinations are conducted by a BSO at Immigration Secondary examinations following a referral from a BSO at PIL. The examination process usually commences when a person arrives at a port of entry. This could be a land border, an airport, a marine harbour or any other place designated as a port of entry. The primary examining officers are responsible for questioning persons and reviewing documentation to determine whether persons – be the persons, Canadians, permanent residents or resident Indi-
ans - have a right to enter Canada or whether foreign nationals should be authorized to enter Canada as temporary residents. Primary examination questions are designed to elicit essential information about citizenship, residency, intention, employment, length of stay and identity as quickly as possible. A person may be referred for a more detailed Immigration Secondary examination by the BSO at PIL when appropriate or when the circumstances of his or her case require a more detailed examination. The examining BSOs at Immigration Secondary examinations have several responsibilities which include determining and dealing with admissibility issues, receiving refugee claims and determining eligibility to make such claims; and issuing removal orders.
involved in these examinations. Counsels are not generally involved in the Primary Immigration examinations. It is a general policy of the Canada Border Services Agency (CBSA) not to permit counsels at examinations if detention has not occurred. But it is a requirement that if the person is detained, the detained person must be informed without delay of his or her right to counsel and be granted the opportunity to retain and instruct counsel. What constitutes a “detention”? The Supreme Court of Canada, in 1993, held that an Immigration Secondary examination at a port of entry does not constitute a “detention” within the meaning of subsection 10(b) of the Canadian Charter of Rights and Freedoms. The Court determined that the principles of fundamental justice do not include the
right to counsel for routine information-gathering such as port-of-entry examination interviews. Thus, the right to counsel may arise only after the initial examination. If the examination does not go beyond what is required to establish admissibility, the need for legal counsel may not arise. Also, if the foreign national is not restrained in any way but advised to come back the next day for further examination as outlined in section 23 of IRPA, then, they are not deemed detained and there may be no right to legal counsel. However, the behaviour could constitute a “detention” and necessitate legal representation in situations where; a foreign national is held for a lengthy period of time and is subject to questioning by other agencies such as the RCMP or CSIS; or where restraining devices are used or the foreign
A question arises as to when a counsel could be
national is placed in a holding cell, even if temporarily; or where the foreign national is detained overnight in a detention facility. It should be noted that officers have the legal right and power to ask persons who arrive at a Canadian airport or any point of entry, a few questions, regardless of the persons’ immigration status. The right to counsel becomes an issue only when the officers detain the person or go beyond what could reasonably be described as a routine informationgathering stage. James A. Kwaateng, is an Immigration Law practitioner with offices located at 168A Oakdale Road, Suite 4, Toronto, Ontario. For thorough discussion of your immigration and related social and legal issues, contact him at telephone number (416) 743-2758.
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