YOU SHOULD KNOW YOUR RIGHTS, AND THE POWERS OF BORDER AND IMMIGRATION OFFICERS

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‘Making a public spectacle of a person’s misdeeds goes against the grain of basic Canadian fairness and decency’
 
BY WILLIAM MACINTOSH
 
STORY-1
 
THE theme song of the U.S. reality police show COPS asks “Whatcha gonna do when they come for you?” The question became reality for eight men arrested by border officers at a construction site in Vancouver on March 13 for working illegally in Canada. While such arrests are not uncommon, the event created controversy because of the presence of a video crew for the Canadian reality show, Border Security: Canada’s Front Line. Since then the Public Safety Minister, Vic Toews, and the Canada Border Services Agency has faced criticism and questions about how they deal with privacy rights and the enforcement of illegal employment. It also brings to light the lack of public knowledge about the powers of border officers inside Canada.
 
Since 2012 the Border Agency has been involved in the production of Border Security. Just like an Australian show, it follows a format originated in COPS. The government and the producers of Border Security defend the program as a documentary, following border officers as they deal with people entering Canada at airports and border crossings, as well as enforcement teams inside the country. The production company website aptly describes the show as “docu-tainment,” as it markets real-life events as entertainment for profit. The government abets the company by spending so-far untold resources in reviewing all material before it is aired.
 
THE recording of questioning and arrests for a reality show is criticized as a breach of privacy rights. The B.C. Civil Liberties Association has filed a formal complaint with the federal Privacy Commission over the incident. The Association argues that recording activities for a television show, before obtaining anyone’s consent, breaches privacy laws as it is outside the normal scope of the Border Agency’s activities.
 
How can the Border Agency allow a video crew to be present in areas closed to the public to overhear encounters with other persons that are subject to privacy restrictions? While the events may not eventually be broadcast, many production members may become aware of the private information in the course of the show’s production. Who is to stop those people from gossiping about what they overhear?
 
Foreign workers need permission to work in Canada. Employers are prohibited from knowingly hiring unauthorized foreign workers, yet employers are rarely prosecuted, even when illegal workers are arrested at their work sites. In the past decade construction work sites have faced less oversight. Employers who knowingly hire unauthorized foreign workers may fail to collect and remit income tax, CPP, employment insurance, WCB and other levies. Are other government agencies failing to take action against those employers? Is there no coordination with immigration enforcement? The problem has probably become more common under the current federal government, as it has substantially increased the number of temporary foreign workers allowed into the country.
 
THERE is a lot of confusion about the powers of border and immigration officers inside the country. Under immigration and customs laws, officials have substantial powers of examination, and search and seizure at airports and border crossings. Persons applying to an immigration officer have duties to answer questions truthfully.
 
When border and immigration officers appear on the street or at homes, their powers are no different than police officers. They have no power to enter and search a home or premises unless they have a warrant, are chasing a person who has run into the home, are investigating a 911 call from the house, believe evidence of a crime is being destroyed or have arrested someone else in the home.
 
A person is not required to say anything, including giving a name or address, if the officers are just making conversation. If you ask if you are free to go and are told no, you have a right to know why you are being detained. You may be subject to a pat-down search for weapons, and a cursory examination of any bags. You still do not have to give your name. If arrested, you have a right to know the reason for your arrest. It is only then, after being arrested, you have a duty to give a name and address. It is only after an arrest that an officer may conduct a thorough search of your body and your possessions.
 
If you choose to say something you should not lie, as that could lead to criminal charges such as obstructing justice. Physical resistance to searches or arrest could also lead to other charges. Remain calm and be polite. Remember details of what was said and reasons given for your detention or arrest, including the name and badge number of the officer. A more detailed description of your rights and duties are included in the B.C. Civil Liberties Association’s Arrest Handbook, downloadable on its website.
 
THESE rights apply equally to Canadian citizens, permanent residents and foreign nationals (whether in Canada legally or not). While unlawfully obtained evidence may not be excluded from an immigration hearing, it may be excluded from criminal prosecutions and rights breaches may be subject to an award of damages at a civil trial against the government and its officers.
 
Enforcement of Canada’s immigration laws generates strong opinions. The government and its followers view it solely as a law and order issue, an agenda it has promoted for several decades. It is also a civil rights issue, pitting individual rights against the power of the state. So long as Canada continues to be a nation of immigrants, this conflict will continue in public and before the courts.
 
Canada outlawed public hangings in 1868. The public pillory ended decades before that. Some attitudes have regressed about two centuries as the pillory appears to be resurrected in the form of government-abetted infotainment on weekly television. Even if unauthorized working is illegal, making a public spectacle of a person’s misdeeds goes against the grain of basic Canadian fairness and decency.
 
William Macintosh has practised immigration law for more than 20 years. He may be contacted at 778-714-8787.