Should government officials pay for lost appeals?

[Machjo]

The CBSA decided to appeal the IRB's recent decision in our favour. I have nothing against that per se. Sometimes there could be concerns about the IRB hearings officer's objectivity, competence, or even trustworthiness if corruption is suspected. Fair enough.

However, what happens when a CBSA officer, knowing full well that he will lose the appeal, decides to waste even more taxpayer money on an appeal with the intent of wielding the appeals process as a weapon of harassment and revenge for having dared to challenge the CBSA's power?

How do we find a balance between allowing the CBSA to appeal a decision on the one hand but not waate countless taxpayer dollars to wield it as a personal weapon of harassment and revenge on the other?

I believe that one possible solution would be to allow a CBSA officer to appeal if he wants to but, should he lose the appeal, force him to reimburse the taxpayers dollar for dollar out of his personal income for the entire cost of the appeal process. This would ensure that, if the reason for the appeal is legitimate, he'll have nothing to fear; but if he's thinking of wasting countless tax dollars to just wield it as a weapon of personal revenge and harassment for having dared to challenge his power, he might then want to reconsider. Such a policy would certainly save the taxpayer at least thousands of dollars in legal fees and protect foreign tourists from CBSA harassment through the legal process.

Another point has to do with prioritization of resources. In our case, even if it were found that she were working in Canada without a visa, given that as a tourist she has to leave Canada within six months of her arrival date either way, is an appeal really worth all the tax money involved when at worst she would be deported for two years max, and even that could be waved for special reasons such as marriage (for which we have January in mind)?

Would it be wise to disallow the CBSA to appeal a decision on a non-criminal charge against someone in Canada on a tourist status? I'd be hesitant to do so sinse again there might sometimes be legitimate reasons to do so; but again we want to be sure that a CBSA officer can't use it for a personal vendetta. So maybe we shouldn't disallow it but just treat it as above again mainly to ensure that taxpayer-funded appeals are legitimate.

Your thoughts on such a reform of the appeals process?

[The_Squid]

CBSA officers do not appeal anything. Dept. of Justice chooses what to appeal or what to let go when the gov't loses a court case.

No, civil servants shouldn't pay for appeals in court cases that occur due to government policy or civil servant actions that are driven by gov't policy. That's an absolutely ridiculous idea that would decimate all but the stupidest civil servant if they were held personally liable for government policy.

[Machjo]

CBSA officers do not appeal anything. Dept. of Justice chooses what to appeal or what to let go when the gov't loses a court case.

No, civil servants shouldn't pay for appeals in court cases that occur due to government policy or civil servant actions that are driven by gov't policy. That's an absolutely ridiculous idea that would decimate all but the stupidest civil servant if they were held personally liable for government policy.

Appeals don't automatically happen as a matter of government policy. If that were the case, the CBSA would automatically appeal every case it loses as a matter of policy.

So someone had to consciously decide to appeal the IRB decision. I don't know who it was specifically, but given the solid case against the charge, plus the fact that it's not a major charge to begin with, make the motive for the appeal suspicious. One thing we'd noticed was that the CBSA's representative at the IRB hearing seemed angry at the decision as if she took it personally. Fine, so she was not happy with the decision. But given the solid case in our favour, it does make us wonder about her motive if she is the one who intends to make the appeal, whether she is in fact using taxpayer dollars to appeal with the intent of using the appeals process as a punishment in its own right, essentially making it a form of harassment under the guise of a legal process.

And if she is doing this to us, on how many other people might she have wasted taxpayer dollars like this just out of spite as punishment for daring to win a case against the CBSA because she took the loss personally?

[The_Squid]

If it is the government being taken to court then DOJ chooses what the government will appeal, regardless of department.

[Machjo]

I think it would be a mistake to assume that being a government officers proves one's objectivity or that a government officer couldn't decide to manipulate government policies for personal reasons.

[Machjo]

If it is the government being taken to court then DOJ chooses what the government will appeal, regardless of department.

We never took the CBSA to court. The CBSA took my fiancée to 'court' (the IRB to be exact) and she won. The CBSA (and I think I know who precisely, albeit not by name since I forgot it) didn't like the decision and now wants to appeal it. What makes it suspicious though are that:

1. The CBSA representative at the IRB hearing did seem to take the IRB decision personally, and

2. The reason for the decision in our favour in the first place was due to a total lack of evidence or even attempt to collect evidence on the CBSA's part among other reasons. The IRB does not respect the presumption of innocence, but it still respects at least the balance of probabilities. While the balance of probabilities does not require nearly as much proof as the presumption of innocence, it still requires at least some proof none-the-less. Given that she'd won on a balance of probabilities (which is much harder to win than one based on a presumption of innocence), and that even on that basis she had a solid case, the CBSA officer appealing the IRB decision must certainly be aware of the nonexistent chance of a decision in favour of the CBSA here.

This leads us to believe that the CBSA representative is just wielding the appeals process as a personal weapon of revenge at taxpayers' expense.

Now if we're lucky, the Federal Court will deny the appeal. But still, why would the CBSA want to appeal a case that it must know it will certainly lose?

[Machjo]

Now it's getting to be ridiculous. Since the ruling in her favour over a week ago, the CBSA has refused to return her passport. Finally today her lawyer sent out faxes informing them that their refusal is illegal and that whoever refuses to return her passport tomorrow will be held legally accountable.

Seriously, is this for real? Are CBSA officers that incompetent in their jobs? Or is it just that their motive for working there is that they personally hate foreign nationals and so will push every boundary of the law and even cross legal boundaries just to harass foreign nationals?

I don't know what the problem is, but law enforcement officers who violate the law should be held accountable by the department right away and not need to wait for an outside lawyer to inform them that what they are doing is illegal. When it reaches that stage, we've got a structural problem within the administration of the organization.

I swear, I feel murderously infuriated right now. No I won't do anything illegal, but I'm just tired of CBSA incompetence in this matter.

[Gleason]

Not necessarily. Appeals can be decided on the whim of a judge not necessarily legal merit. Sometimes a lawyer will piss off a judge and guess what?

[Machjo]

Not necessarily. Appeals can be decided on the whim of a judge not necessarily legal merit. Sometimes a lawyer will piss off a judge and guess what?

You might be correct for some cases.

By the way, it's amazing how co-operative the CBSA becomes once it gets a fax from a lawyer informing it that it is illegally withholding someone's passport and continuing to do so will result in legal consequences for the persons doing so. They handed the passport back yesterday after filling out a little paperwork.

But seriously, it never should have come down to this. How can we trust the CBSA to uphold the law when the CBSA itself has to be reminded by a lawyer's fax that it's breaking the law?!

Shockingly enough though, the CBSA is still bent on appealing the IRB's decision in our favour for such a relatively small matter. Just think of the thousands of dollars being wasted on all of this all because a CBSA officer failed to collect the easiest of evidence, and soon in an appeal because someone wants to save face at taxpayers' expense.

Add to that that we enquired today about suing the CBSA over its illegally withholding her passport for so long, which was damn stressful icing on the cake of it all. We'll decide whether to sue based on her lawyer's response in the next week. But if we do, there go a few thousands more taxpayer dollars wasted.

Then we wonder why the CBSA succeeds mostly only in detaining people but rarely deporting them. The simple answer is that while they love to arrest and detain people, they're too quick to presume people guilty without collecting the least evidence and then get caught at the IRB with their pants down.

[Machjo]

The funniest was that they'd initially feared that if her passport was given back to her, she would leave Canada to go back home but not return for the appeal hearing to determine whether to send her back home. That was Tuesday. I pointed out the odd logic of preventing her from going home so as to ensure she appear at the hearing to determine whether to deport her home.

The officer explained that they did not want her to leave of her own free will but to be deported. Since the CBSA had to give her her passport back yesterday, they reminded her that if she leaves, she must return to Canada for the admissibility hearing or have a warrant out for her arrest.

Because of that and the cost of flights, we're now thinking of marrying in the next month. It will just mean less time for family to buy flight tickets. She had wanted to go back home to see a doctor about psychosomatic and other skin allergies (too much of a wait time in Canada), but decided to just stay, especially seeing that most if her skin reaction was to stress, much if which is somewhat relieved.

But seriously, hat a messed up, expensive and inefficient system.