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 cross-examine 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,” spokesman 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.”
Ebrahim Toure, pictured here at Central East Correctional Centre in Lindsay in February 2017, has never been charged with a crime but has been detained by the Canada Border Services Agency for more than five years because the federal government has been unable to deport him. Last October he was moved from the maximum-security jail in Lindsay to the less-restrictive Immigration Holding Centre in Etobicoke, where he continues to be detained. (ANNE-MARIE JACKSON / TORONTO STAR)
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.