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Toronto Star

Audit of immigration detention review system reveals culture that favours incarceration

Jul 20, 2018 10:38:40 PM

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The first-ever audit into the way Canada reviews immigration detention cases reveals a system that unfairly keeps people behind bars for months on end due to ill-informed adjudicators and a culture that favours incarceration.

The damning findings, including decision-making based on inaccurate information, unchallenged faith in border enforcement officials and inadequate legal representation for detainees, have shocked even the most seasoned critics and rights advocates.

“Non-citizens have a right to liberty and to be protected from cruel and unusual treatment, but as this report shows, this right is routinely flouted under immigration legislation,” said Janet Dench of the Canadian Council for Refugees.

Last year, 3,557 people were held in immigration detention in Canada; in 80 cases people were held for more than a year behind bars.

A Star investigation last year found an immigration detention system that indefinitely warehouses non-citizens, away from public scrutiny and in conditions intended for a criminal population, with hundreds of unwanted immigrants left to languish behind bars. Ebrahim Toure, 46, a failed refugee claimant who has been detained for five years pending deportation to Gambia, is currently the longest serving immigration detainee.

The audit into the fairness of long-term detention reviews at the Immigration and Refugee Board found that last year, 13 per cent of all detainees were held because they were deemed a danger to the public, while 77 per cent were detained because officials feared they were a flight risk. The rest were detained because of an inability to confirm their identity.

Read more:

Caged by Canada | Part 1: Four years lost

Caged by Canada | Part 2: Canada’s longest case

Caged by Canada | Part 3: The damning data

“In many of the decisions reviewed, the assumption seemed to be that any risk was enough risk. As long as there was a chance that the person might not appear, that justified detention. As long as there was a chance that the person would commit another theft, that justified continued detention,” concluded the audit, conducted by Katherine Laird, an adjudicator and mediator with the Social Justice Tribunals of Ontario, a group of eight tribunals that includes the Human Rights Tribunal of Ontario, Social Benefits Tribunal and the Criminal Injuries Compensation Board.

“At times, it seemed like the (immigration tribunal) had its own ‘dangerous offender designation,’ (allowing them to be held indefinitely) without any of the safeguards of that process in the criminal justice system,” said the report.

The independent audit, released Friday, reviewed 312 detention hearings for 18 immigration detainees whose files were closed between April 2016 and August 2017. The detainees involved had all been held for at least 100 days.

Normally, each immigration detainee is eligible for a detention hearing 48 hours after their arrest, followed by a seven-day and 30-day review if an immigration division adjudicator rules the detention should continue.

Among the issues identified by the audit:

  • Inconsistencies being referred to and recycled at each review and eventually becoming part of the accepted history for the detained person.

  • Adjudicators relying on inaccurate statements made by Canada Border Services Agency officers who may have been unfamiliar with the cases.

  • Adjudicators not questioning unreasonable delays.

  • Decision-makers failed to actively consider alternatives to detention such as bail proposals made by community groups and families.

The audit recommended increased oversight of immigration detention cases, that border enforcement officials be questioned “vigorously” in cases of delays, that all current long-term detention files be immediately reviewed, and that hearing protocols and policies on bonds and terms of release be updated.

Nationally, continued detention was ordered at almost 60 per cent of hearings; detainees were represented by a lawyer at 61 per cent of detention reviews and by an immigration consultant at another 6 per cent of the proceedings, the audit found.

“Too often in these hearings, it appeared that the onus of proof had slipped over to the detained person who was almost always unrepresented and powerless to articulate a fresh argument for release or to demonstrate rehabilitation while incarcerated without access to supportive programming,” said the audit.

“In many of these hearings, the (adjudicator) did not appear to give meaningful consideration to the evidence or submissions offered by the detained person, failing to allow them to give affirmed evidence and failing to make findings on the credibility of their testimony.”

Dench, of the Canadian Council for Refugees, said steps have to be taken to “address the ways in which racism and xenophobia contribute to make it acceptable to deny the basic rights of non-citizens, based on assessments of risk and public danger that are informed by stereotypes and prejudices.”

The refugee board’s deputy chair Roula Eatrides, who oversees the immigration division, said she was upset by the report’s findings, but reiterated that the board is fully committed to improving the process and implementing the cultural, operational and procedural changes recommended by the audit.

“This is the beginning of a long dialogue. It’s really critical. An audit by nature identifies areas of improvement. We agreed with the recommendations in the report. That’s a pretty big deal. We agreed there has to be substantive change to the way we manage and conduct detention reviews,” Eatrides told the Star in an exclusive interview.

“The change is really a rethink and cultural shift to how we do business. We are eager to start implementing change,” she said, adding there is no decision more important than one that deprives someone of their liberty.

Eatrides said a new guideline for adjudicators to conduct detention hearings to be released in August will cover many of the suggestions made in the audit

The audit also highlighted the impact of lengthy detention on those with mental health problems, including the case of a man who suffered a complete mental collapse and stopped attending hearings after 16 months in detention. He also stopped talking and became “catatonic and “immobile.”

For almost two years after his mental collapse, both the border agency and the detention review decisions “barely acknowledge his mental health issue,” and at one hearing described him as “mumbling incoherently.”

Prosper Niyonzima, 36, who came to Canada in 1995 after his parents were killed in Burundi, told the Star he suffered a mental collapse while in immigration detention. Niyonzima was detained from 2012 to 2016 on the grounds he was a danger to the public as well as a flight risk. He was ultimately released under the Toronto Bail Program in late 2016 and is staying with relatives.

Nicholas Keung is a Toronto-based reporter covering immigration. Follow him on Twitter: @nkeung

In cottage country, cyclists are clashing with ‘blue collar’ locals — and the police

Jul 20, 2018 2:42:39 PM

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COLLINGWOOD — After decades of promoting itself as a top destination for winter activities, South Georgian Bay’s rolling hills, escarpment views and network of bike paths have turned the area into a summer hot spot for cyclists.

But surging cycling tourism — along with an influx of wealthy retirees bringing their money and bicycles to the area — has stirred resentment, and even surprise police action, including at least one case where cyclists say Ontario Provincial Police used aerial surveillance to ticket a group of riders.

The Bike Wars have come to Ontario’s playground.

“Bikes! Love ’em’ or hate ’em, we all have to put up with them,” Robert Burcher, a self-described cycling pioneer, wrote in an article published in the July edition of The Review, a community newsletter mailed throughout the Blue Mountains.

“But I too am getting outraged at the insolence and arrogance of some of the riders.” He noted that the area’s hilly terrain — a magnet for cyclists — is also a safety hazard for cars “forced into the oncoming traffic on blind hilltops as they try to manoeuvre around the slower bikes.”

Some speculate rancour toward cyclists has led to the defacing of several “Share the Road” signs in the area. A posting on a Facebook cycling site suggested the culprit is “an overweight, middle age, white male smoker” in a pickup truck.

Read more: Why priced-out city-dwellers are eyeing cottage country instead

Some members of the Collingwood Cycling Club (CCC) believe that rather than trying to ease tensions, the OPP’s local detachment is picking sides by targeting cyclists for not following the letter of the law, while giving drivers a pass for similar infractions.

“They’re certainly harassing us for whatever reason, and I don’t think it is safety. I think it’s more they may be reflecting a segment of the community’s opinion,” Pete Bailey, 74, said after a recent early morning ride.

The Star asked the OPP if the Collingwood detachment is targeting cyclists, particularly CCC members, for enhanced enforcement. “The OPP regularly uses education, awareness and enforcement campaigns to ensure the safety of all road users in OPP jurisdictions, including cyclists,” Const. Martin Hachey wrote in email.

“It is the shared responsibility of all road users to stay safe and operate within the bounds of the (Highway Traffic Act.) Those who don’t can be charged with moving violations under the HTA.”

Bailey, a retired IBM manager, and his wife, Clare O’Brien, 68, a radiologist who worked in hospitals in Collingwood and Toronto, were on a return 80-kilometre cycling club ride to Creemore last month when an OPP Const. John Gee signalled for their group to stop.

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Gee told the seven cyclists, wearing the CCC’s high-visibility yellow jerseys, that aerial surveillance had observed them failing to stop at two rural stop signs, the cyclists said, adding that the constable asked for their identification so he could issue tickets.

Among the riders was a retired Toronto police officer, who said he refused to provide his name and challenged the OPP officer to show him the relevant section under the Highway Traffic Act that required him to produce identification.

The retired officer agreed to be interviewed on the condition the Star not identify him because he was “humiliated” and doesn’t want his family to know what happened.

“He had not seen us committing an offence. If you go to Google, it’s (the stop sign) at least 23 minutes away where this alleged offence took place,” he said in between sips of coffee at a Tim Hortons outlet. “I don’t know if cyclists went through there but it wasn’t me ... I stopped.”

The next thing he knew, he was being handcuffed.

“That caught me by surprise,” said the retired cop, who worked 26 years for Toronto police, “If you’re transporting a prisoner, sure, but you don’t, as I see it, handcuff a 70-year-old in Lycra ... with cleats on,” he said.

“Something is amiss here. Taxpayer money? Was there no missing kids that weekend they could have used the plane for?”

O’Brien recorded the encounter on her phone and shared the video with the Star. It shows Gee handcuffing the retired officer, as the other cyclists look on. The ex-cop says he was released a short time later after providing his name to Gee. On Friday, while sitting in a black SUV outside the OPP’s Blue Mountains detachment, Gee declined to comment to the Star.

The OPP would also not confirm if air surveillance was used on June 10, 2018. “Information regarding the OPP’s use of aviation equipment is operational in nature,” Hachey wrote in email.

As for the CCC members stopped June 10, “it appears that the cyclists were not charged at the scene and given the length of time since the stop took place, it is unlikely that they will be,” Hachey wrote in an email to the Star last week.

Cindy Boyd, 55, another cyclist in the stopped group, said it felt as if the officer wanted to send a message that “this is our turf, this is a message to all you cyclists ... beware.” The retired broadcast professional is a native of this turf after recently moving back from Markham to be close to her parents, who she calls “hard-working farmers.”

Decades after riding the roads as a teenager, Boyd has been shocked by the aggression demonstrated by some drivers toward cyclists, such as the trucker whose rig narrowly passed her on a steep descent last week — “his mirror was this far from my shoulder” — before she watched him cut in front of another rider and hit the ditch, apparently “to spray dust him.”

What’s causing all this conflict? Boyd has a theory.

“Collingwood is a blue-collar town, underneath all of it. I grew up here, I know. I’m from Redneckville,” Boyd said this past week after powering her new bike up a hill to the Ravenna Country Market, a popular destination for cyclists and butter tart fans.

“It is the (cycling) culture that this area is not ready for,” she said. “They want to sell their modest little wartime houses, they want to see the money come to the area, but they don’t want to embrace what else it brings.” In addition, leisure-seekers gobbling up real estate is pricing locals out of the market, fuelling resentment.

Len Goodman, a 62-year-old scientist with the federal government who rides with the CCC, senses some locals see cyclists as “entitled” interlopers who represent a different socio-economic class.

“They’re the rich cottagers who come up here and play in our backyard, and we’re working, driving our trucks as contractors, and you guys are playing on your fancy carbon bikes and your fancy Lycra clothing, and getting in the frigging way,” Goodman said.

He’s been heckled, sworn at and told to get off the road and finds it “mystifying” that drivers — and he’s one of them — get so irate over being forced to slow down for what is a “temporary” inconvenience.

What hasn’t helped is that the negative attitudes have been reinforced by the OPP, said Bailey and O’Brien, who say they plan to file a complaint to the Office of the Independent Police Review Director about the OPP stop.

Enforcing the “letter of the law” does not make much sense in a lot of situations for cyclists, clipped into their pedals, riding on quiet rural roads surrounded by open farmland, O’Brien said.

“Obviously, cyclists should always stop at red lights, and cyclists do have to realize they have to stop at stop signs if there is anybody else there,” she said.

“But if you have a clear vision that there is nobody at a four-way stop, you’re the only person, it really doesn’t make too much sense to have to completely stop and get both feet on the ground.”

She wonders how often drivers are ticketed for failing to come to a complete stop — or ensuring there is at least one metre between their vehicle and cyclists. The latter became an offence in Ontario in September 2015.

Steve Varga and Noelle Wansbrough are CCC board members who prefer to focus on the safety record of the club, which has more than 450 members.

“We’re a simple cycling club. I’m guessing 80 per cent of us are retired or semi-retired. Most of us are in a 60s and 70s, and we just want to have an active retirement and enjoy life and what fitness we have,” Varga said with a laugh. “We don’t have an agenda other than safe cycling.”

Varga has been riding for more than 30 years and drafted the club’s riding etiquette and safety guidelines. The club has a “ride leaders” program, and other clubs throughout the province have adopted the CCC’s defensive cycling campaign.

The OPP has even ticketed cyclists for riding side-by-side, Varga said. That’s not illegal under the Highway Traffic Act and, in fact, is an accepted around the world as a safe biking practice, he added.

Varga also insists CCC members ride in single file on busy roads and, when they double up on less travelled routes, move “tight to the right” when vehicles approach from behind.

Wansbrough said the club wants to work with the OPP to come up with a shared interpretation of the Highway Traffic Act, because there are some “very grey areas” that are interpreted differently by different jurisdictions.

Rick Bagg, a retired Crown attorney and CCC member, said several people have told him they have been ticketed for riding side-by-side.

“Police are charging people just riding two abreast when there’s no traffic, no hills, no curves,” Bagg said. Anecdotally, these tickets are being withdrawn when they get to court, which is a waste of everyone’s time and resources, he added.

“What we really need to do is to try to force one of these (tickets) to go to trial, whether we’re convicted or acquitted, then appeal and get a precedent — either tell us we can’t ride that way, or we can say to the police the courts say it’s proper.”

Betsy Powell is a Toronto-based reporter covering crime and court. Follow her on Twitter: @powellbetsy

Toronto police close one chapter of McArthur investigation with ID of Majeed Kayhan’s remains

Jul 20, 2018 8:18:26 AM

majeedkayhan 1 toronto police to provide update on investigation into alleged serial killer bruce mcarthur 20 07 2018 crime news thestar dam content www.thestar.com  https:

Some closure has come at last for the family of an alleged victim of Bruce McArthur, as a chapter ends in the sprawling investigation into the accused serial killer.

Almost six months to the day since one of the biggest arrests in Toronto’s history, police announced they have at last found the remains of Majeed Kayhan, 58, who detectives believe was killed by McArthur in 2012 — the third in an alleged string of eight homicides.

Kayhan was the sole victim whose remains had not been recovered during the exhaustive investigation. The remains of the seven other men were recovered months ago, inside large planters at a Leaside home where McArthur worked for years as a landscaper.

Earlier this month, investigators and canine units began a comprehensive excavation of a forested ravine behind the Mallory Cres. home where those planters were seized. They recovered human remains almost every day of the nine-day dig, which ended last week.

Forensic testing has since linked some of those remains to Kayhan, acting Insp. Hank Idsinga confirmed at a news conference Friday. While testing continues on all remains recovered to date, there’s no evidence to suggest there are any other remains to be found elsewhere, he said.

“Right now I have nothing to indicate there’s anything more than the eight victims,” the lead homicide detective said.

“I hope that it remains at just eight victims.”

Idsinga said investigators have “some ideas” why Kayhan’s remains were found in the ravine while the others were found in the planters, but he would not reveal them.

McArthur was charged with first-degree murder in Kayhan’s death in January, but the discovery of his remains answered key questions for his family.

“They are very grateful. They are very thankful for the closure, and they’re very angry,” Idsinga said. “They’re angry, I think, at the right person, which is Mr. McArthur.”

Read more:

Police found remains essentially ‘every day that we were digging’ in ravine behind home linked to Bruce McArthur

An inside look at the task, in the McArthur investigation, of excavating for human remains

Bruce McArthur showed ‘minimal’ potential for violence, 2003 report concluded

McArthur, 66, is charged with first-degree murder in the deaths of Kayhan, Selim Esen, Andrew Kinsman, Dean Lisowick, Soroush Mahmudi, Skandaraj Navaratnam, Abdulbasir Faizi and Kirushnakumar Kanagaratnam. The men all had links to Toronto’s Gay Village, and their deaths are alleged to have occurred between 2010 and 2017.

Idsinga’s suggestion there may be no more victims will bring reassurance to Toronto’s LGBTQ community, said Haran Vijayanathan, executive director of the Alliance for South Asian AIDS Prevention (ASAAP).

“I certainly am relieved, and I think we’ll find that once the community finds out today that there’s a sense of relief,” Vijayanathan said.

Much work remains to be done, though, to improve police interactions with marginalized communities and prevent similar tragedies, Vijayanathan said. ASAAP has been leading the push for an independent review of Toronto police missing persons investigations, which will include an examination of how officers probed the disappearances of the men now alleged to be McArthur’s victims.

In the months since McArthur’s arrest, Toronto police have faced sharp criticism over their handling of prior missing persons investigations, including allegations officers downplayed long-held community fears of a serial killer in Toronto’s Gay Village. Kayhan had been among the three men whose disappearances were probed in an 18-month investigation called Project Houston, which ended with no arrests.

Vijayanathan said the independent probe, alongside the ongoing internal Toronto police review of missing persons investigations, will help address outstanding concerns around racism, homophobia, transphobia and classism within policing.

“When we look at both (reviews) and sit down and have a conversation, then we can really look at how we build a better system,” Vijayanathan said.

The conclusion of the excavation at Mallory Cres. marks the end of the resource- and time-intensive property searches that have taken place at approximately 100 locations linked to McArthur through his landscaping business. That includes an exacting, four-month search of McArthur’s Thorncliffe Park apartment, which helped make the case the largest forensic examination in Toronto police history.

While recent media coverage of the latest excavation has generated new tips, they are unlikely to lead to more searches, Idsinga said.

Asked if the investigation had come to a turning point, Idsinga said he would describe it as “progressing,” with police turning their focus to preparations for McArthur’s trial.

Work also continues on reviews of cold cases and outstanding missing persons investigations dating back to the 1970s and 1980s. To date, police have found no evidence linking McArthur to any of the cases under review.

The discovery of Kayhan’s remains has brought closure to investigators, alongside mixed emotions.

“You’re happy and content that you’ve found what you’ve found, and brought to a resolution some very difficult questions and gotten some answers for the families,” Idsinga said. “But I think it’s very hard, under the circumstances and the tragedy of it all, to be happy.”

McArthur is due in court Monday.

With files from Jenna Moon

Wendy Gillis is a Toronto-based reporter covering crime and policing. Reach her by email at wgillis@thestar.ca or follow her on Twitter: @wendygillis

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