E/CN.4/2006/7/Add.2
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mechanisms, others provide for the possibility of an appeal to an external, independent civilian
body against procedures and findings of the internal mechanism, still others provide for
investigation by an independent civilian oversight body. Several public inquiries in Canada in
recent years have shown that exclusively internal investigation of complaints concerning
misconduct by police - as is still the case in some provinces - is not sufficient to adequately
address cases of arbitrary conduct, including arbitrary arrests by the police. Also, where an
independent, external agency to receive complaints against the police is in place, the
effectiveness of the oversight will be diminished if that agency cannot conduct its own
investigations and therefore has to rely on internal investigations. This shortcoming can be
remedied, at least in part, by attributing to the police oversight agency the power to order a
different police force to conduct an investigation, as is the case in British Columbia.
72.
Analogous concerns apply to the area of corrections, where in several Canadian
jurisdictions no external, independent mechanism exists for the investigation of complaints
regarding the conduct of corrections officers. Other jurisdictions do have independent oversight
mechanisms and there is also an ombudsman for federal corrections, the Correctional
Investigator.
B. Detention under immigration law
73.
As already stated above, the detention of refugee claimants and foreigners without status
is the exception. The Working Group wishes to underline that this is - and hopefully will
remain - the positive background against which the concerns it expresses with regard to
immigration detention must be viewed.
1.
Application of the grounds for detention of foreigners
pending admissibility hearings or removal
74.
One of the grounds on which an immigration officer can detain a foreign national is that
she is not satisfied as to the foreigner’s identity. When the immigration officer relies on this
ground, as they often do, the law does not allow the Immigration Division to review whether the
immigration officer was reasonable in concluding that the identity of the detainee was not
established. The legislation thus fails to offer judicial oversight of the decision to detain based
on identity.
75.
The Working Group is of course aware that some foreign nationals intentionally destroy
or conceal their identification papers. Immigration officers, however, often have unrealistic
demands regarding the quantity and quality of identification documents refugees can realistically
be expected to carry with them. For instance, according to consistent reports received by the
Working Group, people fleeing countries in turmoil or areas of conflict are asked to get
documents that they are unlikely to be able to produce or that they might never have used before
(credit cards, family photos, birth certificates). This practice of applying “developed-world
criteria” to the reasonable proof of identity by an asylum-seeker is all the more preoccupying as
the inability to produce such documents is often interpreted by the immigration authorities as an
unwillingness to cooperate, which not only leads to the immigrant being considered at risk of
flight, but is also seen to negatively affect the credibility of the asylum claim.
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