What Are Your Rights When You Are Examined for Admissibility?2013-01-20
The individual mentions a few minor incidents with the law years ago, but thinks nothing of it at the time.
The border officer continues to question the individual and instead of allowing him into Canada, he asks him to “step inside”. At this point, the border officer is going to examine the individual to determine whether or not he (or she) is admissible to Canada. This is also known as the “secondary examination”.
What are your rights at this point?
There are two fundamental rights that one might turn to in this situation, and I’ll discuss each of them below.
- Right Against Self-Incrimination
Section 11 of the Charter of Rights and Freedoms protects an individual from self-incrimination. In other words, it is the right not to testify against yourself if you are charged with an offense.
On many occasions, lawyers have argued that answering questions at an admissibility examination would violate this fundamental right.
However, the courts have been clear – there is no violation of Charter Rights in these circumstances. The courts have held that the examination is to determine a person’s status or admissibility to Canada. As such, the person is not charged with an offense, so the Charter Right is not applicable.
In fact, the courts have stated that a person can in fact be compelled to answer questions during an immigration examination.
- Right to Silence
So you have no right against self-incrimination. What about a right to silence? This is found in Section 7 of the Charter of Rights.
Again, the courts have stated that that an individual’s right to silence is not violated by an immigration examination. The courts have stated that again, as no charges have been laid or arrest made, then the right to silence does not apply.
The courts have gone even further to state that even if the individual is also facing criminal charges (separate and apart from the immigration matter at hand), that there is still no right to silence, as there are legal safeguards to ensure that testimony from an immigration examination is not used in a separate criminal proceeding.
So if you are not arrested or detained, but simply examined for admissibility by an immigration officer, then you have no right against self-incrimination, nor a right to silence.
Can I bring legal counsel to the examination?
Individuals are often keen to bring legal counsel to an immigration examination.
Although there have been some conflicting court cases on this matter, the general consensus is that there is no right to legal counsel at immigration examinations. Without Charter Rights, there is no fundamental justice provisions (which include a right to counsel).
However, it is important to note that there is no right to legal counsel only during questioning that is simply to determine if the individual is admissible or not. If there is any detention of the individual whatsoever, then there is a right to legal counsel.
For example, if you are questioned by other agencies (such as the RCMP or CSIS), then you would have the right to legal counsel. Another example would be if you are detained overnight, you then have a right to legal counsel.
As soon as the examination moves into a detention (or arrest or charge), at that point you have a right to legal counsel.
In practise, the border officer will generally allow legal counsel at the examination (if legal counsel arrives with the individual) but is not required to allow legal counsel to remain, especially if the legal counsel disrupts the examination.