Human rights organizations and civil liberty advocates in Canada have this Tuesday revealed the existence of what looks like back channels between some Gambian immigration officials and agents of the Canada Border Services Agency to exchange information being used to deport Gambians from Canada.
Lawyer Jared Will is representing Ebrahim Touray, a Gambian scheduled to be deported to The Gambia next month. He said Dale Lewis is a Canadian border officer who “lacks credibility in every material respect, behaved like a vigilante in his efforts to obtain identity documents for Ebrahim Touray, a longtime immigration detainee. If the Immigration and Refugee Board accepts the officer’s “nonsensical” evidence it would “make a mockery” of the tribunal“, the Gambian detainee’s lawyer said Tuesday.
Testifying Friday, Dale Lewis, the Canada Border Services Agency officer on Touray’s case, provided no explanation for why he used his personal email and WhatsApp to communicate with Gambian authorities, saying he had “no idea” if he was authorized to correspond with foreign governments in that way. He said he is the only person who knows his informant’s identity.
In January 2020, Dale Lewis was in The Gambia on another matter. He said he had an impromptu meeting with Gambian immigration authorities and convinced them to look into Touray’s case. Lewis subsequently received Touray’s passport and birth certificate in a couriered package, although he couldn’t say exactly who sent it.
Lewis also relied on information obtained from a confidential informant in The Gambia whose identity was known only to him, and that he had never read the CBSA’s policy on the use of confidential informants. Lewis kept very few investigative records and provided no documentation of his correspondence with Gambian officials. His testimony was often confusing and contradictory.
According to lawyer Jared Will, “Officer Lewis’s testimony on Friday demonstrated his willingness to go rogue”. The agency has been trying to deport Touray, a failed refugee claimant, since it first detained him in February 2013. He was incarcerated for five-and-a-half years, mostly in a maximum-security provincial jail, because the CBSA believed he would not show up for his deportation if it could be arranged.
Touray has never been charged with a crime in Canada, but was considered a “high-risk” detainee based on a 2005 conviction for selling pirated DVDs in Atlanta, an offence for which he served no jail time. Touray was released from detention in September 2018 when the CBSA admitted it did not know when it would be able to deport him. He was re-detained this month and is scheduled to be deported Dec. 11, days before his wife is due to give birth to their first child.
Throughout the hearings, being conducted by telephone conference, Lawyer Will has raised questions about the authenticity of a passport and birth certificate Lewis said he received from Gambian authorities, citing irregularities in the documents themselves and how Lewis obtained them.
The CBSA has resisted disclosing any information about how the documents were obtained, saying they aren’t relevant to the hearing, which is only to determine whether or not Touray will be detained while he awaits deportation.
In his closing remarks on Tuesday, Lawyer Will called the CBSA’s refusal to provide disclosure on his immigration contacts in The Gambia as “disgraceful, unlawful and unconstitutional.”
“If I were the CBSA and a lawyer was publicly accusing the agency of fraudulently procuring documents through illicit means and I actually had evidence to show that those documents were issued legitimately … I would tender that evidence.”
The CBSA’s representative, who acts as a kind of prosecutor at the quasi-judicial tribunal, has said that determining the authenticity of the documents is beyond the scope of the hearing.
In closing remarks, Alexis McLellan provided no defense for Lewis’s “unscrupulous” actions, but said Will was highlighting them to distract from Touray’s lack of credibility. The lack of disclosure provided to immigration detainees has been a longstanding criticism of Canada’s immigration detention system. Last year, the Federal Court ruled that the government must disclose evidence to detainees and that disclosure was “central” to the legality of detention. Despite that ruling, there is a persistent culture of refusing to disclose evidence at the CBSA, Will said.
“There’s a culture of ‘We’ll produce what we want to produce and we’ll take the consequences of not producing it,’” he said in an interview after Tuesday’s hearing. “Even though the consequences of not producing it should be drastic.” The lack of corroboration for Lewis’s evidence means the only option is simply to believe him, Will said. “That’s a problem.”
Presiding board member Jean-Marc McCabe has ordered the CBSA to provide disclosure, but it has yet to do so. He has not ruled on any penalty for that.
Hanna Gros, a researcher for Human Rights Watch who is monitoring the hearing, said the CBSA’s lack of evidence is “especially alarming because the government is exercising the most invasive act it can take against any individual — the deprivation of liberty.”
Touray, who is illiterate, has said he doesn’t know where exactly he was born. He believes his father was from Guinea and his mother was born in Senegal, and he moved among several West African countries, including Gambia, throughout his childhood. He has been consistent about these facts since December 2015, Will said, and has largely co-operated with the CBSA’s efforts to remove him, including providing a DNA sample, filling out a passport application and meeting Gambian officials.
The CBSA pointed to inconsistencies in information Touray has provided to the government since his detention began. Touray said he previously made false statements about where he was born because he thought it would help the CBSA deport him or would lead to his release.
Will pointed to the fact that the grounds for Touray’s previous detention for more than five years was primarily on the basis that he denied things that the CBSA now admits were false.
“And we’re supposed to keep Mr. Toure in jail now because he’s the liar?”
McCabe is expected to deliver his decision Wednesday.