Please note that the information in this Tab is for background only; speaking points have been included in the “Top Media Lines” section of this binder
Standing Lines: “The Board remains committed to its mandate of providing fair and efficient adjudication on refugee and immigration matters. It would not be appropriate to comment further on an individual case”.
High profile media:
Helmut Oberlander - The Minister has referred two s. 44 reports to the ID (for misrepresentation, and for human rights violations/war crimes/crimes against humanity). Preliminary issues were dealt with in writing. Mr. Oberlander requested the ID dismiss the referral for lack of jurisdiction and abuse of process. However, the ID issued a decision on October 20, 2020 dismissing the application.
In light of Mr. Oberlander’s advanced age and visual/auditory/cognitive impairments, the ID granted his counsel’s request that
“redacted” be appointed as his Designated Representative.
Multiple media have made requests on the current status of the case before the ID and have been provided with public documents on the case and application, including Global News, National Post, Canadian Jewish News, CBC, Waterloo Record, as well as Russian media. On October 21, 2020, media following the case were provided with the decision on the application to dismiss and informed of next steps. On November 4, 2020, Terry Pender of the Waterloo Region Record reported that counsel for Mr. Oberlander filed for leave and judicial review of the ID’s October 20, 2020 decision.
On November 5, 2020 Mr. Oberlander’s counsel filed an application for leave and judicial review to quash the ID’s decision, based on allegations that the decision was unreasonable and that the ID erred in law, misrepresented, or ignored evidence.
Ebrahim Toure – Detention Review (November 2020):
He was detained from February 2013 to September 2018; released on 20 September 2018; detained again on 4 November 2020; and most recently ordered released on 18 November 2020.
On November 6, 2020, a 48-hour detention review was held for Mr. Toure following his arrest and detention for removal by CBSA on November 4, 2020. The Minister disclosed that a Gambian passport was issued to Mr. Toure, valid from August 5, 2020 to August 5, 2025. With the issuance of this travel document, CBSA submitted that there remained no legal impediment to Mr. Toure’s removal, and a removal date was tentatively scheduled for December 14, 2020. According to CBSA, Mr. Toure contended once again that he is a citizen of Guinea and no other country. However, no alternatives to detention were proposed by his Counsel. The detention review was adjourned for a decision, and at the November 9, 2020 resumption, his detention was ordered continued based on flight risk.
The 7-day detention review was held on November 13, with resumptions on November 16, and 17, followed by an adjournment for a decision. On November 18, Mr. Toure was ordered released with terms and conditions including a $6000.00 cash bond from his permanent resident wife, electronic monitoring, and weekly reporting to the CBSA. CBSA confirmed that removal is scheduled for December 11, 2020.
Brendan Kennedy of the Toronto Star attended the DR proceedings and requested/was provided with disclosure (DR-22 and DR-23) made by the Minister. The reporter also requested an interview with the presiding Member and contacted the Member directly to schedule same after he was informed by Media Relations that an interview would not be possible. He has written a number of articles reporting on the 48-hour and 7-day detention reviews, raising questions about the credibility of the evidence and testimony from CBSA Removals Officer Dale Lewis, and the veracity of the passport obtained for the purpose of Mr. Toure’s removal.
Timothy Durkin - Admissibility Hearing (October 2020):
Mr. Durkin, who has been involved in litigation regarding the sale of the internationally renowned hotel Sooke Harbour House near Victoria, BC, had an admissibility hearing scheduled November 4-5, 2020 via MS Teams. Four media reps plus observers attended virtually via Teams.
The hearing began with an application by Durkin’s counsel to have an “in-person” proceeding, despite having requested the remote hearing earlier in the year. After adjourning November 4 for submissions (due November 5 AM), the member issued a decision on November 5 dismissing the request for an in-person hearing and granting the request to exclude observers from outside Canada. The hearing is rescheduled for December 7 and 8, 2020.
The CBSA requested the admissibility hearing in March 2019 after a delay when Mr. Durkin applied to Federal Court against the decision of the CBSA to file a 44 report. The admissibility hearing was not scheduled due to delays by Mr. Durkin, then agreement to await the outcome of various court procedures. Mr. Durkin is wanted in the USA for fraud.
Mr. Durkin applied to the ID to have his hearing made private. The request was denied by the Member in a March 5, 2020 decision. The proceedings remain public.
Vincenzo De Maria – Admissibility Hearing (February 2020):
Vincenzo DeMaria had an admissibility hearing in April 2018 at which he was ordered deported. He appealed his deportation order and the case went to the Federal court. On April 18, 2019, the
Federal Court in decision (IMM-2077-18) ruled: “Much of the Member’s analysis on this ground is based upon “suspicious transactions” and “hypotheses” that require membership in
‘Ndrangheta to give them any kind of traction as reasonable grounds to believe. Hence, the Decision must be set aside on this ground as well and returned for reconsideration”.
Adrian Humphreys of the National Post contacted the IRB on May 9, 2019 indicating interest in attending any detention reviews and/or admissibility hearings regarding this case. He continued to closely follow the case, attending public proceedings, requesting transcripts and disclosure, and reporting on any developments.
In early October 2019, the CBSA applied for and was granted a change of location for the admissibility hearing from Montreal to Toronto.
Mr. DeMaria was granted day parole on April 22, 2020 and was immediately placed on an immigration hold. He was referred for a 48-hour detention review on the basis that he was unlikely to appear for an admissibility hearing and a danger to the public, which commenced on Monday, April 27, 2020 and was continued. Resumptions of the 48-hour detention review were held on April 29, May 1, May 4, May 6, May 7, May 8, May 11, and May 12, all of which were adjourned for lack of time. A resumption on May 13 was adjourned for an oral decision. A decision ordering Mr. DeMaria released from detention was rendered orally on Tuesday, May 19, 2020. It was determined that Mr. DeMaria was a danger to the public, however terms and conditions would offset the potential risks posed by the person concerned. Terms and conditions imposed included 2 bondspersons, $50,000 cash and $400,000 performance bonds, and restrictions on mobility, contacts and access to cell phone and internet. CBSA confirmed that Mr. DeMaria was released from detention on May 21, 2020.
An admissibility hearing was originally scheduled for the week of July 13 – 17, 2020, prior to the onset of the pandemic. However, at a case management conference (CMC) held June 16, 2020, all parties agreed that the admissibility hearing should not proceed as scheduled via teleconference given the Covid-19 environment, but should be rescheduled to a later date and conducted in person due to the complex allegations and large volume of disclosure. Another CMC was scheduled for September 15, 2020 to address how and when the admissibility hearing would proceed considering the status of in person hearings at the IRB at that time and any disclosure issues. Dates for an upcoming CMC are currently set for December 15 - 16, 2020.
Derek Whisenand – Detention Review (Dec 2019)
On December 30, 2019, Media reported that the Halifax Police arrested a Texas murder suspect, Derek Whisenand, in Nova Scotia. Mr. Whisenand, crossed illegally into Canada near Haskett, Manitoba in June 2019. He is currently being detained by the CBSA.
Mr. Whisenand had various detention Review hearings between January 2 – 24, 2020 where Detention was maintained for flight risk and danger to the public due to criminal charges outside of Canada. On February 11, 2020 there was a 30-day detention review and admissibility hearing. Continued detention was maintained for flight risk and being danger to the public Mr. Whisenand was not present for this hearing. The admissibility hearing was postponed.
On March 10, 2020, there was 30-day detention review and admissibility hearing.
“redacted” The March 10th hearing and subsequent hearings thereafter are now private. A Designated Representative and counsel both located in Montreal were appointed for Mr. Whisenand. Pending Mr. Whisenand’s counsel’s familiarity with the case, the admissibility hearing was postponed to April 7, 2020.
The Chronicle Herald requested the March 10 detention review and admissibility hearing be made public. The Minister’s counsel and Mr. Whisenand’s designated representative and counsel opposed the presence of media,
“redacted” The ID member allowed media access and issued a publication ban and a confidentiality order on documents with regards to an incident at the correctional facility on January 31, 2020. Continued detention maintained for flight risk and being a danger to the public and self harm.
March 31, 2020 – Detention was maintained. The admissibility hearing originally scheduled for April 7, 2020 was held on March 31, 2020. The admissibility hearing was postponed, as Mr. Whisenand expected the hearing to take place on April 7, as originally planned. Due to the COVID-19 situation, media were not present.
April 30, 2020 - 30-day detention review and admissibility hearing. Continued detention was maintained for flight risk, being a danger to the public and self-harm. Further, Mr. Whisenand was issued a conditional deportation order, as there were reasonable grounds to believe he is inadmissible to Canada. The publication ban and confidentiality order issued on March 10, 2020 was continued. Media were not in attendance due to COVID-19 situation but remained interested in the case.
May 29, 2020 - Continued detention was maintained for flight risk, being a danger to the public and self-harm. Madame
“redacted” was confirmed as Mr. Whisenand’s Designated Representative. The publication ban and confidentiality order of March 10, 2020 was continued and applied to the May 29 detention review hearing. Media were not in attendance.
June 25, 2020 - Continued detention was maintained for flight risk and being a danger to the public.
“redacted” The publication ban and confidentiality order remained in effect. Media were not in attendance.
July 23, 2020 – Continued detention was maintained for flight risk and danger to the public. The hearing was held in the subject’s absence as he refused to come out of his cell.
“redacted” Media were not in attendance. A new publication ban was issued with the same terms.
August 20, 2020 - The hearing was held in Mr. Whisenand’s absence. Detention was maintained for flight risk and danger to the public.
September 15, 2020 - Detention was maintained for flight risk and danger to the public. The hearing was held in the subject’s absence. Since the subject is a long-term detention case, CBSA case management team met to discuss the case. The correctional facility said that subject needed a forensic psychiatric assessment asap; the case management team agreed to do the assessment. Media were not in attendance. A new publication ban was issued with the same terms.
October 15, 2020 - Detention was maintained for flight risk, danger to the public and self-harm. The hearing was held in the subject’s absence. Media were not present. A new publication ban was issued with the same terms.
November 13, 2020 - Detention was maintained for flight risk, danger to the public and self-harm. The hearing was held in the subject’s absence Media were not present. A new publication ban was issued with the same terms. The next detention review is scheduled for December 11, 2020 at 09:00 ET/10:00 am AT.
Herman Emmanuel Fankem
National Post published articles in May and June 2019 concerning the case of the ‘Unknown Person’ referred to as Herman Emmanuel FANKEM. For more than six years, a man who refuses to identify himself has been held in a maximum-security prison pending removal from Canada. On June 21, 2019 the ID issued a written decision to render the proceedings private as per section 166(b) (ii). The man’s detention was ordered continued on September 4, 2019. Detention was continued following subsequent detention reviews; A detention review held on February 17, 2020 resulted in continued detention, and it was disclosed by CBSA that Cameroonian authorities have confirmed that the person concerned is a Cameroonian national; outstanding remains confirmation of his name and date of birth and issuance of a travel document for the purpose of removal.
A detention review was held June 26, 2020. His designated representative has resigned, and a new designated representative is to be appointed. He is also no longer represented by counsel. It was also disclosed that his habeas corpus application for release to the Superior Court of Justice, Ontario, based on allegations that his detention was unlawful, was dismissed. At his subsequent detention review held on July 28, 2020, the person concerned was represented by new counsel, Karim Escanola, who was retained by newly appointed designated representative, Vivian Garofalo. However, the person concerned has thus far refused to meet or speak with either, has not provided instruction to his counsel, and refused to participate in the detention review hearing. His detention was continued on grounds that he is a flight risk, and the next detention review was scheduled for August 21, 2020.
At his August 21 detention review, the Minister confirmed that while the subject’s identity remains outstanding, his nationality was now confirmed. A travel document application will be submitted to the Cameroonian Consulate. Evidence presented suggested a travel document will be issued soon. Once obtained, the Minister can make removal arrangements for the subject. Detention has been continued since, and the next detention review is November 30, 2020.
Note: The proceedings are currently public and have been since November 2019. Reporter Adrian Humphreys of the National Post has been provided with all available transcripts (in French) since the case became public again. The reporter has not reported on the case again to date.