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Compellable, comshmellable . . . what’s in self-incrimination

Immigration law is one of the few areas of law, maybe the only one, in which people whom the state seeks to penalize or sanction, even imprison, are forced to testify against themselves. This seems inconsistent with every value we have concerning the protection of an accused and a healthy mistrust of the state. But there it is; in proceedings before the Immigration Division of the Immigration and Refugee Board of Canada, the person concerned is compellable to testify. 

[span style="font-size: 12.16px; line-height: 15.808px;"]Proceedings before the immigration division involve issues of detention and/or admissibility. Admissibility may include anything from allegations of terrorism to allegations of working without a work permit or staying beyond visitor status. 


[span style="font-size: 12.16px; line-height: 15.808px;"]The range of importance of these proceedings is as vast as the consequences of the determinations. 


[span style="font-size: 12.16px; line-height: 15.808px;"]Empowered to issue deportation orders, the immigration division can put a person’s life at risk by ordering them to return to a country where they risk execution or torture. Even so, their rights before the immigration division do not include a right to protection against self-incrimination.

[/span]This principle was tested recently in Bruzzese v. Canada (Public Safety and Emergency Preparedness). Bruzzese is an Italian citizen residing in Canada. In 2008, he was prosecuted in Italy for being associated with a Sicilian criminal organization. He was ultimately acquitted of that charge.

However, in 2010, a warrant for Bruzzese’s arrest was issued by the Italian authorities alleging that he was wanted in relation to his alleged association with the ’Ndrangheta crime syndicate. Extradition on these charges is not possible, as Canada does not recognize the criminalization of associating with a criminal gang. However, membership in such a gang is a ground of inadmissibility, and so in 2015 and 2016, that was the issue before a panel of the immigration division.

The key witness against Bruzzese was Bruzzese himself. The minister called him to testify, against strenuous objections of counsel and later at judicial review. The importance of what Bruzzese said when he was compelled to testify is highlighted in the decision of the Federal Court on judicial review. Regarding Bruzzese’s testimony at the hearing, the court held:

There is not much doubt that Mr. Bruzzese did himself no favours with some of the testimony he gave.
For example, his evidence that he knew nothing about the Ndrangheta despite his established friendships with several of its high-ranking members was not believable. On several other issues, as the Board duly noted, Mr. Bruzzese was evasive or nonresponsive. The Board took particular note of Mr. Bruzzese’s claim that, while he was a friend of the notorious Mafia leader, Vito Rizzuto, he knew nothing at all about Mr. Rizzuto’s extensive criminal background. In the main, though, his evidence amounted only to a bare denial of the Italian criminal allegations.

The court on judicial review upheld the immigration division decision that found Bruzzese compellable. In doing so, the court characterized his interests in this proceeding at the lowest possible end of the spectrum of rights. In fact, the court called the proceeding “of no legal consequence” to Bruzzese. The proceeding was referred to as “an inquiry about admissibility” carrying no “penal consequences.” These are unusual findings, describing a process that is highly adversarial and contentious to be one in which the parties just want to find out what happened and resolve things, without harm to anyone. That cannot be further from the truth. Indeed, after Bruzzese was found to be inadmissible, he was deported to Italy where he was imprisoned for a crime that is not a crime in Canada. The penal consequences came later, it is true, and in another jurisdiction, but this result was highly predictable and inevitable. So, how could this happen?

The problem lies in how the immigration division is structured and empowered. Section 165 of the IRPA grants the board the powers and authority of a commissioner appointed under Part I of the Inquiries Act, RSC 1985, c I-11. The board may also do any other thing it considers necessary to provide a full and proper hearing. Section 4 of the Inquiries Act grants to a commissioner the power to summons any witness and to compel the witness to testify under oath or affirmation. This statutory framework is sufficient to permit the board to compel testimony from the subject of an admissibility hearing, at least to the extent that the predominant purpose is to advance a lawful, legitimate goal. This point was made in Branch v. British Columbia Securities Commission:

An inquiry of this kind legitimately compels testimony as the Act is concerned with the furtherance of a goal which is of substantial public importance, namely, obtaining evidence to regulate the securities industry. Often such inquiries result in proceedings which are essentially of a civil nature. The inquiry is of the type permitted by our law as it serves an obvious social utility. Hence, the predominant purpose of the inquiry is to obtain the relevant evidence for the purpose of the instant proceedings, and not to incriminate Branch and Levitt.

The Federal Court also cited Phillips v. Nova Scotia. Here, the SCC considered the issue of the compellability before a public inquiry of two persons who were simultaneously facing criminal charges. Both proceedings arose out of a coal mine explosion at the Westray Mine in Stellarton, N.S. The court had no difficulty in holding that the two accused were compellable before the inquiry notwithstanding the potential for conflict between the two proceedings.

The issuance of a deportation order for the purpose of forcing a person out of Canada to face imprisonment is not a “penal consequence” warranting protection against self-incrimination. Oh. Ok. Now I get it.

For the time being, a person brought before the immigration division is compellable. But they should not worry, nothing bad can happen there.