Benhmuda v Canada and CBSA deportation procedures

by Jenny Rokhline

This piece was prepared for the Osgoode Refugee Law Fall 2012 class. The following is not legal advice and should not be treated as such.

“No Canadian government of any political stripe deports people to torture. We have the fairest asylum system in the world,” said Minister Kenney while responding to Don Davies in the House of Commons. He is correct, in light of the Suresh v Canada (MCI)[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][1] decision the Canadian policy since 2002 is that an individual cannot be deported to a country where there is a possibility of a deportee being tortured (with exception that such individual is not a danger to Canada).

However, as seen in Benhmuda v Canada (MCI), there are situations when the possibility of a mistake in determining the risk of torture in the country to which an individual is being deported is overlooked.  Refugee cases are determined by humans and humans, by nature, tend to make mistakes.

The consequences of these mistakes are dire: upon their return people are detained, tortured or killed[2] by the authorities of their home country. However, what makes it even grimmer is that these deportees are robbed of their last chance of avoiding these consequences because of the deportation procedure employed by the CBSA.

As stated in the CBSA Enforcement Manual s. 23.3 and in Benhmuda in paragraph 9, CBSA seizes passports of deportees and provides it to the airplane crew that hands the document to the authorities upon landing. The rationale for this procedure is clear: to ensure that the deportation process is carried out in its fullest and that the deportees are removed from Canada. This creates a situation where the very nature of the deportation procedure draws attention of the authorities of the receiving state. If there was a possibility of torture or other form of persecution, the current procedure may well be exacerbating it. Instead, CBSA could allow deportees a chance of quietly blending back into their country of origin and give the opportunity to look for a safe place in their home country.

In describing the current procedure, a CBSA official stated that “under no point during the removal process are…receiving authorities advised that an individual has made a refugee claim in Canada.”[3] However, it does not require exceptional analytical abilities to realize that a family like Benhmudas that fled Libya and came to Canada looked there for refuge.

Cases like Benhmuda exemplify how the current CBSA removal procedure does not account for human errors in the refugee determination process and exposes the deportees to an overlooked possibility of persecution that they were fleeing in the first place.

It would be just if the process was adjusted to recognize that mistakes are made in the refugee determination process.

[1] 2002 SCC 1, 18 Imm LR (3d) 1.

[2] Rod Mickleburgh, “Deportations to Iran rising despite torture concerns”, The Globe and Mail (2 April, 2005) online: The Globe and Mail <http://www/>.

[3] UNHCR, “Iran: The repatriation of failed refugee claimants to Iran, including reports of claimants being detained, mistreated and tortured upon removal from Canada on the basis they made refugee claims in Canada” (March 2007),  online:<>.


All right reserved. No part of this electronic publication can be reproduced in any form by any means without prior written permission from the authors. Explicit permission is required for any extended quotation in the media. Permission is given specifically for each quotation and on a case-by-case basis.[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

How can we assist you?