Immigration bail: Focus on the credibility of the bondsperson

This post will be more technical, about a recently effective experience in approaching the issue of credibility in a proposal for release.

If a person in immigration detention  is facing criminal charges, a number of immigration charges or some combination of the two, it can be challenging to convince the decision-maker (Immigration Division Member) to release that person.  The best possibility for release for such a person is often to have a person come forward as a bondsperson (BP).  The BP must know the person detained, be a Canadian citizen or permanent resident (is grounded in Canada), be over 18, come forward voluntarily, have finances to put up as a bond or guarantee that are a significant sacrifice and be aware of why the person is detained.  A key factor in deciding whether the BP is suitable  is how credible and reliable the person is.  The credibility and reliability can offset the perceived lack of credibility and reliability of the detainee.

On the first day of the hearing, there was testimony from both the person detained and the proposed BP. The detainee was already considered unreliable and not credible due to criminal charges and immigration charges and also said a number of inconsistent statements in testimony regarding the friendship with the BP and was very anxious.

The BP, on the other hand came across very impressively, being very candid about the short duration of the friendship with the detainee, limited finances, concerns about the detainee's charges (some which were just learned)  and about the degree of sacrifice of the amount proposed. But in the end, the BP was still willing and sure of her ability to do the task at hand. As far as witnesses go, it could have made a good instructional video.

Day 2 was for final submissions. Regarding inconsistent statements, I noted that fleeing from domestic violence in the country of origin, which was why the detainee was an eligible refugee claimant, should open the possibility that trauma may be affecting behaviour.  On the credibility issue, I argued that the presumption of innocence must be maintained and that the detainee should not be considered morally culpable for mere charges.  I was fully aware that in the case of these immigration proceedings, criminal charges are considered evidence of lack of credibility and reliability, and did acknowledge this (gritting my teeth), but emphasized that the decision maker should still weigh issues of credibility accordingly, considering that the person was not convicted.

I will highlight a couple of cases I used in my submissions that were very effective (as it turned out) in arguing for release. In Canada (Citizenship and Immigration) v. B157, 2010 FC 1314 (CanLII), the rationale of a BP’s role was addressed,

[49] …  the whole rationale behind the appointment of a bondsperson is to ensure that the person released will comply with the conditions of his release and will appear at the proceedings he may be called to attend.  For such a surety to be meaningful, the bondsperson must have the capacity and the incentive to control the person being released.

The focus on the appropriateness of a BP should be on the risk that the BP is taking on, not the risk carried by the detainee.  This was dealt with in Wang v. Canada (Public Safety and Emergency Preparedness), 2015 FC 79 (CanLII):

 [27]           The bondsman is involved to assure compliance with the terms of a release order. The assurance that they will fulfil the task, aside from the usual requirements of good character, is that they are “at risk” if the release person fails to comply with the terms of release. The monetary element is the “at risk” aspect of the bondsman’s commitment.

Therefore, unless the Applicants were putting up their own money, the issue is not whether their failure to comply hurts them financially but whether it would hurt the bondsman sufficiently that the risk of non-compliance is minimalized.

Basically, the focus on credibility and reliability should be on the BP for determining the suitability of that BP.  Any credibility and reliability issues with the detainee should be considered as increased burdens of risk to be carried by the BP.  I pointed out that the credibility of the detainee should not be considered part of the assessment of the credibility of the BP.

The decision maker accepted the argument about limiting a negative credibility / reliability assessment of the detainee considering there were only charges and no convictions on the criminal matters; accepted the argument about the credibility and reliability of the BP being the key consideration in deciding whether release was appropriate, and ordered release on the strength of the credibility of the BP.

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