Section 10(b) of the Canadian Charter of Rights and Freedoms provides that:
10. Everyone has the right on arrest or detention
(b) to retain and instruct counsel without delay and to be informed of that right; and
In the immigration context, the right to counsel does not arise at most secondary examinations, unless the person is actually arrested or retained.
As such, the Canada Border Services Agency’s (“CBSA“) general policy is not to permit counsel at examination if detention has not occurred. In practice, officers will often waive this policy if they are satisfied that legal representatives will not interfere with the examination process.
Where Detention Has Occurred
Immigration, Refugees and Citizenship Canada’s Enforcement Manual 4 – Port of Entry Examinations (“ENF4“) provides that arrested or detained persons must be informed without delay of their right to counsel and be granted the opportunity to retain and instruct them. ENF4 further states that the right to counsel depends on what transpires after the foreign national is first subject to examination. It states:
- if a foreign national is being examined and the examination does not go beyond what is required to establish admissibility, the person is not entitled to legal counsel;
- if the examination becomes very lengthy and exhaustive yet not beyond what is required to establish admissibility, the foreign national is not entitled to legal counsel. The Border Services Officer may, however, give consideration to allowing the foreign national to acquire legal counsel; if the foreign national is not restrained in any way but advised to come back the next day for further examination, then they are not deemed detained and there is no right to counsel;
- if a foreign national is being held for a lengthy period of time and is subject to questioning by other agencies such as the Royal Canadian Mounted Police or the Canadian Securities and Intelligence Services, then this may constitute detention and the foreign national should be notified of their right to counsel;
- if restraining devices are used or the foreign national is placed in a holding cell, even temporarily, then an officer must inform the foreign national of the reason for the detention and of their right to counsel;
- if the person is arrested for a criminal offence, they must be informed of the reason for the arrest and of their right to counsel; and
- if the foreign national is detained overnight in a detention facility, the foreign national shall be advised of their right to counsel and their right under the Vienna Convention to contact their government once the decision to detain has been made by a border services officer.
Immigration, Refugees and Citizenship Canada’s Enforcement Manual 12 – Search, Seizure, Fingerprinting, and Photographing further provides that a search will become detention when it constitutes an involuntary personal search. This is because the person cannot refuse to submit to the search and is not free to leave the examination. A search of the baggage of a person seeking entry to Canada is not considered to be a detention, however, a full body search of a person is. As well, any delay in authorizing entry to Canadians, permanent residents or registered Indians, including a personal search conducted for immigration purposes, would constitute detention and the person would have to be advised of their right to counsel.
Where there is No Detention
As the Federal Court of Appeal held in Ha v. Canada (Minister of Citizenship and Immigration) (“Ha“) neither the principles of natural justice nor the Charter entitle a person to representation by counsel in all proceedings by all administrative tribunals or statutory delegates. However, common law principles of natural justice and constitutionally entrenched fundamental justice concepts both require that officers consider whether, in the circumstances of each individual case, a party before the officer entitled to counsel. Decision-makers who deny representation to counsel in circumstances which are sufficiently serious or complex so as to require counsel may, depending on the circumstances, have breached procedural fairness, and any decision resulting from the lack of counsel will be set aside.
In Ha, a visa officer interviewing a refugee asked the refugee substantive legal questions, and even asked the refugee to apply the law to his circumstances. The refugee’s request that legal counsel be able to attend the interview was denied. The Federal Court of Appeal found that the application of mixed fact and law meant that counsel should have been given the opportunity to attend the hearing, as the opportunity to observe could have alerted counsel to the officer’s legal concerns, could have been addressed later in written submissions.
R v. Taylor
In the 2014 Supreme Court of Canada (“SCC“) decision addressing the right to counsel, R v. Taylor, 2014 SCC 50, the SCC excluded evidence in a criminal trial which was obtained at a hospital and during which the police made no effort to facilitate the accused’s right to communicate with a lawyer.
Some of the more noteworthy paragraphs of the SCC’s decision in Taylor include:
The purpose of the s. 10 (b) right is “to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights”: Manninen, at pp. 1242-43. The right to retain and instruct counsel is also “meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination”: R. v. Suberu,  2 S.C.R. 460, at para. 40. Access to legal advice ensures that an individual who is under control of the state and in a situation of legal jeopardy “is able to make a choice to speak to the police investigators that is both free and informed”: R. v. Sinclair,  2 S.C.R. 310, at para. 25.
The duty to inform a detained person of his or her right to counsel arises “immediately” upon arrest or detention (Suberu, at paras. 41-42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee’s request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances (R. v. Luong (2000), 271 A.R. 368, at para. 12 (C.A.)). Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.
This means that to give effect to the right to counsel, the police must inform detainees of their s. 10 (b) rights and facilitate access to those rights where requested, both without delay. This includes “allowing [the detainee] upon his request to use the telephone for that purpose if one is available” (Manninen, at p. 1242). And all this because the detainee is in the control of the police and cannot exercise his right to counsel unless the police give him a reasonable opportunity to do so (see Brownridge v. The Queen,  S.C.R. 926, at pp. 952-53).
Until the requested access to counsel is provided, it is uncontroversial that there is an obligation on the police to refrain from taking further investigative steps to elicit evidence (R. v. Ross,  1 S.C.R. 3, at p. 12; R. v. Prosper,  3 S.C.R. 236, at p. 269).
Right to Counsel and Refugee Claimants
On October 23, 2015, the Federal Court in Canada (Citizenship and Immigration) v. Gutierrez certified the following question of general importance:
If a refugee claimant has indicated on the Basis of Claim form or elsewhere that he or she has counsel of record, is it a breach of procedural fairness for an officer to examine the refugee claimant after the claim has been referred to the Refugee Protection Division for determination without advising counsel of record of the proposed examination and providing counsel an opportunity to attend?
Justice Zinn certainly found that it was, writing that:
[CIC’s] position that subsection 167(1) of the [Immigration and Refugee Protection Act] only confers a right to counsel at a Board hearing is too narrow an interpretation of the Act. The subsection confers a right to counsel on anyone who is “the subject of proceedings before…the Board.” This phrase is broad enough to encompass persons who are required to attend pre-hearing interviews that are conducted for the purpose of gathering evidence for a hearing. It would severely impinge on the effectiveness of a refugee claimant’s right to counsel if that right only allowed counsel to make submissions at a hearing itself, and provided him or her with no opportunity to participate in the fact-finding process upon which the hearing is based. Nothing in the Act compels such a narrow interpretation.
I do not agree with [CIC] that the answer to this question is informed by the decision of the Supreme Court of Canada in Dehghani v Canada (Minister of Employment and Immigration),  1 SCR 1053 [Dehghani]. In that case, the Court held at page 1077 that “in an immigration examination for routine information-gathering purposes, the right to counsel does not extend beyond those circumstances of arrest or detention described in s. 10(b)” of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. [CIC] submits that because the [refugee claimants] were not detained within the meaning of section 10(b) of theCharter when they attended the June 26th Interview, their right to counsel was not engaged.
Dehghani involved an examination that was conducted at a port of entry for the purpose of processing an application for entry and determining the appropriate procedures that should be invoked in order to deal with an application for Convention refugee status. In other words, it was the sort of routine information gathering exercise that both parties agree does not give rise to a right to counsel. That is not this case.
In this case, the information gathering stage was over. The officer had already determined the correct procedure and referred the .. claims to the RPD for determination. At that point, [they] had a statutory right to retain counsel to represent them in respect of their hearing. They took advantage of that right. The right to retain counsel must include the right to have that counsel present during any material aspect of the proceeding and that must include any part of the proceeding that involves the gathering of information from the claimants for the purposes of the proceeding. Accordingly, the right was breached by the officer when he directed the [claimants] to attend an interview for the purpose of gathering evidence for the upcoming hearing, without informing .. counsel.
In Canada (Citizenship and Immigration) v. Paramo de Gutierrez, the Federal Court answered as follows:
Question: Does a delegate of the Minister of Public Safety and Emergency Preparedness have jurisdiction and authority to examine a refugee claimant pursuant to subsection 16(1.1) of the Immigration and Refugee Protection Actabout his or her refugee claim after the claim has been referred to the Refugee Protection Division for determination?
Question: If a refugee claimant has indicated on the basis of claim form or elsewhere so that it appears on the record of the Refugee Protection Division that the claimant has counsel of record, is it a breach of subsection 167(1) of theImmigration and Refugee Protection Act and a breach of procedural fairness for an officer to examine the refugee claimant about their refugee claim after the claim has been referred to the Refugee Protection Division for determination without advising counsel of record of the proposed examination and providing counsel an opportunity to attend?