By SEAN FINE
Tuesday, July 17, 2018
Olajide Ogunye was starting his day early, preparing to drive to his English-upgrading class. It was a sunny morning last June, and life was looking up. He had stayed out of trouble for five years.
In a second, his life changed. As he tells it, several vehicles came hurtling toward him. The Toronto man was told he was under arrest and, although he showed his Canadian citizenship card, accused of being an illegal immigrant. He was taken to offices of the Canadian Border Services Agency (CBSA) - the immigration police - fingerprinted and told his prints matched those of Oluwafemi Johnson, a failed refugee claimant who was deported in 1994.
Then he was held in Canada's migrant-detention system, which is not supposed to ensnare the country's citizens even for one day. His detention lasted eight months.
Mr. Ogunye's lawyers say his ordeal points to deep flaws in the immigration enforcement system; above all, they say, those who decide whether people will be detained or set free tend to take the CBSA's allegations at face value.
In February, the federal government acknowledged it was "more likely than not" that he really was Olajide Ogunye, and he was released. Mr. Ogunye is now suing the Canadian government for $12.5million for wrongful arrest, false imprisonment and breaches of his constitutional rights.
The Nigerian-born father of two, a barber, was held in maximum-security jails.
(No one said he was dangerous; the federal government has a contract with Ontario's Ministry of Community Safety and Corrections to take some of its immigration detainees.) He had 11 detention review hearings during his eight months in custody, presided over by members of the immigration division of the Immigration and Refugee Board.
"I'm not [Oluwafemi] Johnson," the soft-spoken Mr. Ogunye, now 47, recalls saying at his review hearings. "My name is Olajide Ogunye. I am a Canadian citizen."
Mr. Ogunye has a criminal record for fraud and misrepresentation, which caused the board members to view him as less credible, transcripts show.
But that doesn't explain why he was denied release, even when a cousin and a friend offered to post a $25,000 bond and watch over him, his lawyers say.
And why, they ask, was a man with government-issued identity documents, including a recently updated passport, and two people to vouch for his identity, told at review hearings he had presented "no evidence" of his claim to be a Canadian? Why did the government take six months to check his identity with other family members living in the Toronto area? Why was the fingerprint match presented as conclusive when it was not?
The answers to these questions, his lawyers say, point to a process stacked against migrants (or in Mr. Ogunye's case, a Canadian mistaken for one) in which the immigration division board members usually accept the word of the CBSA. The board members are government employees who serve as the system's "judges." They do not need to be lawyers.
"The submissions by the CBSA are often treated as gospel," Leo Rayner, who represented Mr. Ogunye in some of his detention review hearings, said in an interview. (Mr. Rayner is not involved in the lawsuit.)
In fiscal year 2016-17, Canada detained more than 6,200 immigrants or refugees, including 439 for more than 90 days, most of them, like Mr. Ogunye, were deemed "unlikely to appear" at a hearing or a deportation.
Last summer, after court rulings found the migrant-detention system disregarded basic legal principles of fairness, the Immigration and Refugee Board (IRB) announced an audit of detention reviews, to be completed last fall.
It never appeared. Spokeswoman Anna Pape said in an e-mail on June 29 that it has just been completed, and will be posted (along with the government's response) on the IRB's website by mid-July.
The Globe and Mail contacted the office of Public Safety Minister Ralph Goodale to ask why a Canadian would be detained in this way. His spokesman, Scott Bardsley, declined to comment, citing the legal action. The CBSA also declined comment.
"CANADA IS A GOOD COUNTRY"
Mr. Ogunye was 21 when an uncle sponsored his mother, father and their seven children to come to Canada in 1991, according to the statement of claim in his lawsuit produced by his civil lawyer, Adam Hummel. In 1996, he became a Canadian citizen. Soon, though, he was in trouble with the law.
In November of that year, a legal document shows, he was convicted of three counts of possession of a credit card obtained by crime. The next year, he was convicted of three counts of fraud under $5,000. Four years later, he was convicted of forgery.
The offences, mostly of a similar nature, kept coming until late in 2012, when he was convicted of possession of property obtained by crime.
It is not clear how Mr. Ogunye came to the CBSA's attention.
Nor is it clear what steps his family members took (apart from his cousin) to try to obtain his freedom.
At Mr. Ogunye's first immigration hearing, in June, 2017, board member Lori Del Duca said that based in part on that record of fraud and misrepresentation, and in part on the CBSA claim it had a fingerprint match, there was no immediate alternative to detention. "It does not appear that it should be a lengthy period of time," she said.
But he was still there in August. For Mr. Ogunye's hearing that month, Mr. Rayner had found the cousin and the friend to put up money and support him in his release. Both held good jobs and had no criminal record. In sworn affidavits, they vouched for his identity. His cousin, Olorunyomi Ogunpolu, said he had known Mr. Ogunye since he was seven days old in Nigeria.
But the Canadian government lawyer, Andrej Rustja, insisted Mr. Ogunye was Mr. Johnson, and said the two proposed bondspeople were untrustworthy because they had "not even accepted that he was previously deported from Canada." Immigration division board member Karina Henrique agreed, and refused to release him.
Mr. Rayner went to the Federal Court of Canada seeking a judicial review. He could not contain his sarcasm. The immigration division apparently believes, he wrote in his argument submitted to the Federal Court, that his client "invented a method of time travel, went back to the time of his birth, and convinced Mr.
Ogunpolu that the infant he was looking at was Olajide Ogunye and no one else." Federal Court Justice Michel Shore rejected the request for judicial review.
Months passed. Mr. Ogunye was put on suicide watch, he says in the statement of claim, which contains unproven allegations.
(The CBSA says it will file a statement of defence this month.) It was not until January that the CBSA interviewed two of Mr. Ogunye's sisters and a brother, the document alleges.
After all of it, Mr. Ogunye says, he is still a proud Canadian.
"Canada is a good country," he says.
"The way I look at it, it's very peaceful, too. You can raise good kids."
Despite showing immigration police his citizenship card, Olajide Ogunye was held in a migrant-detention facility for eight months.
FRED LUM/THE GLOBE AND MAIL
Olajide Ogunye was 21 when an uncle sponsored his mother, father and their seven children to come to Canada in 1991. It is not clear how Mr. Ogunye, who has been a Canadian citizen living in Toronto since 1996, came to the CBSA's attention.
FRED LUM/THE GLOBE AND MAIL