Should an accused violator of immigration law be allowed an inquisitorial process?

[Machjo]

A friend of mine accused of having violated Canadian immigration law a while back had participated in an adversarial hearing in which the judge had to rule on a mere balance of probabilities and she had difficulty proving her innocence of the charge against her due to the Minister's counsel resisting the presentation of various witnesses and withholding otehr proof.

The judge ruled in my friend's favour anyway, the Minister appealed, and again.

But it still got me thinking. What if she had the right to request an inquisitorial process instead? This would mean that she would have lost much control over her case, but so would the Minister's counser over hers. The judge would have had far more intrusive powers to call witnesses whether for or against her, so he could have called the witnesses himself. In a sense, it would be like a nuclear option. If the accused fears that the Minister's counsel might not show the judge everything and might resist the presentation of witnesses or other evidence (as it turned out, the Minister's counsel had presented some pictures only at the appeal hearing, though they too turned out to be in my friend's favour, the counsel counting on my friend to be in the pictures, but she was nowhere to be seen!), then the accused could ask for an inquisitorial hearing. If she knows she has nothing to hide, then an inquisitorial hearing makes both sides more of an open book with the judge having the power to dig out everything the police and CBSA have. in a sense, it forces both sides to lay all their cards on the table. Also, if a CBSA officer or a police officer knows that an accused of an immigration violation could opt for this nuclear option, that officer will be more cautious about frivolously making accusations if he knows that the judge could potentially pull all the dirt on him.

Your thoughts on this? My thought is if a cop knows that an accused could opt to give the judge that kind of power, the corrupt officers, this could keep officers more on their toes.

 

[personal touch]

I don't want to burst your bubble but unfortunately the court process or the Justice which oversees this case might not be the fair process one requires.
I am or I think I am not acquainted with the inquesitoriol process,but there are a few factors which are beneficial for entering into an administered process,and your legal counsel should easily be able to give the pros and cons of such processs.
Sometimes it is not always about winning or losing but I do understand when humans who are misplaced the story is different
The accompanying process to legislation/law is different from province to Province,your legal counsel should be able to determine if the process is fair and just,sometimes those processs are hollow holes,be careful
Out here in Alberta there was a good and bad Justice circuit,who gets the bad?and who gets the good?great information auditing adventures

Best to your friend

 

[Machjo]

I don't want to burst your bubble but unfortunately the court process or the Justice which oversees this case might not be the fair process one requires.
I am or I think I am not acquainted with the inquesitoriol process,but there are a few factors which are beneficial for entering into an administered process,and your legal counsel should easily be able to give the pros and cons of such processs.
Sometimes it is not always about winning or losing but I do understand when humans who are misplaced the story is different
The accompanying process to legislation/law is different from province to Province,your legal counsel should be able to determine if the process is fair and just,sometimes those processs are hollow holes,be careful
Out here in Alberta there was a good and bad Justice circuit,who gets the bad?and who gets the good?great information auditing adventures

Best to your friend

Immigration is Federal, not provincial, and the accused doesn't get to choose. The standard system Canada-wide is the adversarial system.

The problem with that is that the judge has no inquisitorial powers. Correction, he has minimal inquisitorial powers. He could ask the accused or a witness questions for example, but that's about it. Beyond that, the accused's and the Minister's counsel would be the primary askers of questions, and only the counsel's can present witnesses. For example, if the accused's counsel doesn't know the names of the officers who arrested the accused and asks the Minister's counsel to provide those names, the Minister's counsel can refuse and tell the accused's counsel to go through the long process if the Access to Conformation Act if he wants them. The Minister's counsel can refuse to call a CBSA officer as a witness. The Minister's counsel can refuse to present all available proof to the judge and present only that proof that seems to prove the accused's guilt. The judge can do nothing about it. His hands are tied.

Okay, the judge can rule in the accused's favour of course, but then after all that, the Minister's counsel can appeal the ruling, present a little more proof at the next hearing (whether for or against the accused), and we repeat the whole process again.

In an inquisitorial system, the judge has full inquisitorial powers. He can request access to the whole file on the accused's case. The judge himself can try to obtain witness statements, etc. In other words, he's no longer just a passive arbiter between two parties, but rather an active participant in the investigation. As a result, rather than have to play games with a Minister's counsel whose job it is to prove the accused's guilt and present only evidence that supports that while suppressing other information, he can skip that middle person and access all the available information himself. That way, in cases where the accused is innocent, it's a chance to get all the available prrof' to the judge in one shot for him to make a decisive decision and that way the CBSA has less motive to appeal since the judge will have seen the whole file anyway.

 

[Tecumsehsbones]

Yawn. Had the argument several times in law school. There's no evidence either system produces superior results.

 

[Machjo]

Yawn. Had the argument several times in law school. There's no evidence either system produces superior results.

Then correct me if I'm wrong. At my friend's adversarial hearing, the Minister's counsel could resist the presentation of information or evidence that was in her power to present. In an inquisitorial process, depending on the details, the judge himself could choose to access that information, no?

 

[gerryh]

Then correct me if I'm wrong. At my friend's adversarial hearing, the Minister's counsel could resist the presentation of information or evidence that was in her power to present. In an inquisitorial process, depending on the details, the judge himself could choose to access that information, no?

Your friend should consider herself lucky she was allowed to set foot in our country, period. She should consider herself lucky that she get's any kind of "hearing".

 

[Machjo]

There may be cases when the adversarial system is preferable. But when the accused knows that all the evidence will either corroborate her claims or at least not contradict them, and she knows the Minister's counsel has nothing on her but speculation and is just doing what she is paid to do and that is to prove her guilt, I think those are the cases in which the inquisitorial system is far superior to the adversarial one.

Your friend should consider herself lucky she was allowed to set foot in our country, period. She should consider herself lucky that she get's any kind of "hearing".

At the first hearing, the judge had ruled in her favour on the basis of a balance of probabilities due to her having proved many claims in the CBSA report to have been false and due to irregularities in the police report.

Are you saying an accused should never have the right to challenge an officer's claims?

Unfortunately, the judge ruled too soon. He skipped the witness and the accused's counsel's final testimony before ruling in the accused's favour.

This resulted in the Minister's counsel appealing the decision. At the appeal, the Minister's counsel presented some evidence (pictures) that she'd not shown at the original hearing, to show my friend was in the pictures. The pictures showed her nowhere to be seen in them. But my friend is aware that the Minister's counsel also had access to the names of police officers and other witnesses that she refused to share with my friend's counsel on request.

The problem with that is while the Minister's counsel could not prove my friend's guilt, she could prevent my friend from proving her innocence. This allowed her to drag the process outwhrn it could have been resolved very quickly. The problem though is that the Minister's counsel is actually paid to prove my friend's guilt, so her very job description goes against the goal of finding the truth.

From what I know of my friend's case, I get the impression that under an inquisitorial process, the ruling in her favour would have been far more ironclad and so significantly reduced the probability of an appeal.

 

[Tecumsehsbones]

Then correct me if I'm wrong.

When are you ever not? But as your more recent posts show, you have the bit in your teeth, and you will not hear any argument to the contrary. So I won't waste my time.

 

[MHz]

Sure, from their country of origin after they have been deported.

 

[Machjo]

When are you ever not? But as your more recent posts show, you have the bit in your teeth, and you will not hear any argument to the contrary. So I won't waste my time.

No, I am open.

In fact, I was just thinking that an alternative to the inquisitorial process would simply be an obligation on the Minister's counsel to provide all files related to the case to the accused's counsel. For example, let's say the police statements mention witnesses, the defence would have the right to know who these witnesses are. That way, if the Minister's counsel won't call them to testify, then the défense could do it, or even just to contact them to access their statements.

The main point being that it's clearly unjust if the Minister's counsel controls all the evidence, can sift through it or anything that could appear incriminating, and then present only that to the judge.

Meanwhile, the Minister's counsel might be sitting on all kinds of evidence that could help the accused but the accused's lawyer can't even access it.

Yes it's true that the judge will probably rule in favour of the accused in such cases due to the lack of significant proof on the Minister's side, sure. But withholding police files leaves the defendant unable to defend himself in a more ironclad manner and so increase the probability of an appeal.

The judge will probably rule in favour of the accused the second time too, sure, but had he had full police disclosure at the start, he could have made a much stronger case so as to significantly reduce the probability if an appeal.

So what would be your recommendation to ensure that the judge can access as much evidence as possible?

Sure, from their country of origin after they have been deported.

You bring up a good point there. She was legally bound to return to Canada for the appeal hearing or face the possibility of arrest. What for? To determine whether to exclude her from Canada for a year. I kid you not. She's not wealthy but far from poor none the less. She was offended enough at the appeal that she decided to return to Canada for it.

In such a scenario, should a person not be allowed to attend the hearing at the Canadian embassy? To legally obligate a person under threat of arrest to return to Canada to determine whether to exclude him from Canada for a year borders on harassment.

One possibility might be to say that if the judge already ruled in the accused's favour, the whole point of the appeal is to have the person excluded from Canada for a year, and the appeal will probably be scheduled over a year later, the appeal is automatically rejected the moment the person informs the CBSA at an airport that he's leaving. In my friend's case ironically enough, had she list and not appealed, she could still return after a year since it would have been a one year Exclusion.

Instead, she won, and the appeal was scheduled for over a year later. Ironically, losing and not appealing would have been less punitive than winning and then facing an appeal.

 

[gerryh]

With all that being the case, then I would say she's an idiot, has more money than brains, or both.

 

[Remington1]

Granting any sort of citizenship or temporary stay in a country should not require it's government to spend time, resources and funding to prove that this person had probable reason to have lied, cheated on her application or whatever "the charges against her" might have been. The CBSA has enough to handle without starting to be second guessed and their judgement ending in our courts. A panel verifies charges and if they decide there is enough causes to shut the door, then I believe in their collective decision, and our courts should have the decency to have their back. If our country was lead by sensical people, this lady would not have had the option to 'appeal', she's a visitor, lied, now go home. Probabilities have a place in law, but not in cases like this one.

 

[Machjo]

With all that being the case, then I would say she's an idiot, has more money than brains, or both.

When she first decided to refute the charges, she hadn't expected the police reports to contain so many incriminating errors against her, forcing her to then have to counter false statements.

She also hadn't counted on the Minister's counsel to resist the presentation of witnesses and other proof in its possession. Given that, she's won a swift victory. The whole hearing lasted 1 1/2 days.

What she hadn't imagined was that the Minister would appeal or that it would take over a year to reschedule it. She was just too angry to let it go.

Granting any sort of citizenship or temporary stay in a country should not require it's government to spend time, resources and funding to prove that this person had probable reason to have lied, cheated on her application or whatever "the charges against her" might have been. The CBSA has enough to handle without starting to be second guessed and their judgement ending in our courts. A panel verifies charges and if they decide there is enough causes to shut the door, then I believe in their collective decision, and our courts should have the decency to have their back. If our country was lead by sensical people, this lady would not have had the option to 'appeal', she's a visitor, lied, now go home. Probabilities have a place in law, but not in cases like this one.

Firstly, nothing to do with any citizenship application. She doesn't even want to stay in Canada. Once she wins, she's going back home. She was charged with working without a visa.

Ironically, had they not appealed, she wouldn't even be in Canada right now. She's staying with family in Canada until she wins. For her, it's just a matter of principle with no practical benefit for her.

Secondly, on the question of lying, she had proved conclusively that most of the claims on the CBDA statement against her were false. They claimed she didn't know the answer to various interview questions the CBSA officer asked. She's answered all of them correctly at her bond hearing and so proved conclusively that she did know the answers.

The Minister's counsel resisted the presentation of the CBSA officer as a witness.

There were police statements too. Those statements contradicted each other in places and mentioned various witnesses. Again, the Minister's counsel sencored the names of the cops and witnesses and again resisted their presentation without going through the Access to Information Act so as to draw it out.

So she'd decided not to bother with that since the statements alone were easy enough to discredit. She won, but never expected the Minister to appeal. Her counsel suspected that maybe the Minister's counsel feared precedent and might not have been so interested in changing the ruling in her favour so much as at least changing parts of the rational for the previous ruling.

At the appeal hearing, the Minister's counsel was supposedly arguing that the previous judge had given too little weight to the uncorroborated police statements.

She's still awaiting the ruling in the mail and expects it to be another ruling in her favour. But she already said that if the CBSA appeal again, she will return again to face it yet again until she wins.

 

[Curious Cdn]

Yawn. Had the argument several times in law school. There's no evidence either system produces superior results.

Guilty until proven innocent always achieves results!

 

[Machjo]

Guilty until proven innocent always achieves results!

Given that she enjoyed only the balance of probabilities, she was already halfway there. Unlike presumption of innocence where the accused must privé the accused's guilt, here both sides had to try to prove the probability of their respective cases.

But given the Minister's counsel had full access to CBSA and police resources but could pick and choose what to show the judge and keep the rest secret from the accused's counsel, we might as well say she was guilty until proved innocent except for the fact the judge at her first hearing had noted the Minister's counsel's resistance to present witnesses and other proof in her possession.

The first judge argued he couldn't just accept police statements at face value when their contents are challenged and that the Minister's counsel herself could have called the officers in as witnesses but didn't.

I think that was the main basis of the appeal. The Minister's counsel is trying to argue that the CBSA shouldn't need to defend the statements, that the judge ought to just have accepted them on the grounds that the accused's counsel had retracted the request for the police and CBSA officers to appear.

The judge at the first hearing had noted that the accused's counsel had requested they appear, the Minister's counsel resisted saying they'd have to go through the Access to Information Act, and so the accused decided to drop the request. The first judge had noted that the Minister's counsel herself could have called them as witnesses but resisted it instead.

The appeal appears to be that the Minister's counsel should have no need to prove the veracity of a police or CBSA statement.

 

[gerryh]

we shouldn't be wasting money on someone that is not a citizen. Bar her for life because of how much she has cost the Canadian taxpayer and get her the hell out of the country.

 

[Machjo]

we shouldn't be wasting money on someone that is not a citizen. Bar her for life because of how much she has cost the Canadian taxpayer and get her the hell out of the country.

Wait a minute. She'd conclusively proved most of the CBSA officer's statements to have been false. She also strongly contested poorly written police statements but the Minister's counsel resisted the presentation of witnesses.

I won't say the officers lied, since that implies providing false information with intent to deceive. But they clearly provided false information. Even the Minister's counsel didn't really defend the CBSA statement at the appeal. Instead, she just tried to downplay its importance and shift the focus on police statements and presented further police proof that was not presented at the first hearing: pictures. For some reason, the Minister's counsel was convinced my friend would be among the people in the pictures, but she was nowhere to be found among the pictures.

Why blame a foreign nation for false statements written by Canadians who are too spineless to back them up?

Do you believe officers should just be free to write whatever they want in a statement and not need to back it up even after many of their statements had already been proved false?

Now Gerryh, you may believe that officers are incapable if error, and you gave the right to your opinion.

Si Gerryh. If U understand your attitude, Canadian life is sacred while th e rest should just f off with no right to evend defend themselves against false accusations? Good to know.

 

[Remington1]

When she first decided to refute the charges, she hadn't expected the police reports to contain so many incriminating errors against her, forcing her to then have to counter false statements.

She also hadn't counted on the Minister's counsel to resist the presentation of witnesses and other proof in its possession. Given that, she's won a swift victory. The whole hearing lasted 1 1/2 days.

What she hadn't imagined was that the Minister would appeal or that it would take over a year to reschedule it. She was just too angry to let it go.



Firstly, nothing to do with any citizenship application. She doesn't even want to stay in Canada. Once she wins, she's going back home. She was charged with working without a visa.

Ironically, had they not appealed, she wouldn't even be in Canada right now. She's staying with family in Canada until she wins. For her, it's just a matter of principle with no practical benefit for her.

Secondly, on the question of lying, she had proved conclusively that most of the claims on the CBDA statement against her were false. They claimed she didn't know the answer to various interview questions the CBSA officer asked. She's answered all of them correctly at her bond hearing and so proved conclusively that she did know the answers.

The Minister's counsel resisted the presentation of the CBSA officer as a witness.

There were police statements too. Those statements contradicted each other in places and mentioned various witnesses. Again, the Minister's counsel sencored the names of the cops and witnesses and again resisted their presentation without going through the Access to Information Act so as to draw it out.

So she'd decided not to bother with that since the statements alone were easy enough to discredit. She won, but never expected the Minister to appeal. Her counsel suspected that maybe the Minister's counsel feared precedent and might not have been so interested in changing the ruling in her favour so much as at least changing parts of the rational for the previous ruling.

At the appeal hearing, the Minister's counsel was supposedly arguing that the previous judge had given too little weight to the uncorroborated police statements.

She's still awaiting the ruling in the mail and expects it to be another ruling in her favour. But she already said that if the CBSA appeal again, she will return again to face it yet again until she wins.

Exactly my point. She is abusing our laws. CBSA officer, police, courts!!! she did not have a work visa, go home. If your not here to work, then make sure you state that clearly, and don't make mistakes in pretending you don't understand or misread something. When I next visit China or Hong Honk I wonder if I take the almighty road and challenge their judicial process and see how 'they' will entertain my idiocracies, and determination to prove they are wrong, and how much they care that they've insulted me, so demanding my day court. I'm pretty sure I wouldn't be sitting in my friend's home waiting for my next day in court.

 

[Machjo]

Exactly my point. She is abusing our laws. CBSA officer, police, courts!!! she did not have a work visa, go home. If your not here to work, then make sure you state that clearly, and don't make mistakes in pretending you don't understand or misread something. When I next visit China or Hong Honk I wonder if I take the almighty road and challenge their judicial process and see how 'they' will entertain my idiocracies, and determination to prove they are wrong, and how much they care that they've insulted me, so demanding my day court. I'm pretty sure I wouldn't be sitting in my friend's home waiting for my next day in court.

She's taking the opportunity to visit a relative and Canada in the mealtime. Big country.

The point though is she is not guilty of the charge against her, the CBSA is the one abusing our laws by making frivolous appeals on false charges, no? In some respects, she's doing all Canadians a favour. The same police and CBSA officers who wrote their statements against her can arrest, charge, and write statements against Canadian nationals too in criminal investigations. Now think about this. If she teaches them a lesson that they can't just make whatever accusation they want but must back it up with proof, then that reduces the risk that you or I will be arrested or charged with a crime without the police investigating first. Sure we'd win, but even better that we're never charged and having to waste our time in court in the first place, no?

I'd rather our officers know that Canada doesn't tolerate officer incompetence or corruption or false accusations against anyone, foreigners included. What about you? Do you think we should tolerate it?

And if you don't want a victor to return to Canada, then don't appeal a decision so as to force him to return.

Remember, she did not return to Canada voluntarily. She was legally bound to return to Canada. So if the CBSA wanted her out, all it had to do was not appeal and she would have left. But the CBSA did not want her to leave voluntarily but to force her to leave. To do that, it appealed so as to force her to return so they could try to force her to leave, and she will win yet again? If the CBSA appeals yet again and so forces her to return yet again, will you blame her for the CBSA's stupidity?

 

[gerryh]

Si Gerryh. If U understand your attitude, Canadian life is sacred while th e rest should just f off with no right to evend defend themselves against false accusations? Good to know.

What the hell does this statement have to do with some foreigner costing Canadian taxpayers money?