Border agents under fire at immigration hearing for reality show raid

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Canadian border guards are silhouetted in Surrey, B.C., on August 20, 2009. THE CANADIAN PRESS/Darryl Dyck

VANCOUVER - The federal border agency's decision to allow a reality television crew to film a raid that resulted in the arrest of a group of suspected illegal immigrants wrongly intimidated the men and violated their privacy, a lawyer for one of the workers told an immigration hearing Friday.

The Canada Border Services Agency has been facing criticism since a raid at a construction site in Vancouver, where officers arrested members of a painting crew as a camera rolled for the reality TV program "Border Security."

A number of the workers who were arrested appeared before the Immigration and Refugee Board on Friday for a mandatory review of their detention. Five workers were ordered to stay in detention, while a sixth was released on conditions.

Among them was Tulio Renan Aviles Hernandez, who is from Honduras but had been living and working in Canada illegally for more than a year.

His lawyer, Laura Best, argued his arrest and detention were illegal because, she said, he was detained improperly and was questioned without a lawyer. But she also argued the TV camera added an extra layer to an already problematic arrest.

"The presence of the TV camera is directly relevant to the context of intimidation that was happening in the building," Best told Aviles Hernandez's hearing.

"It's all part of the context of a detention where they (the workers) can't leave the building, they're being filmed, the officers are questioning them, he is not sure if he can leave the room and at no point is he given his opportunity to speak to counsel."

Immigration board member Michael McPhalen concluded Aviles Hernandez's charter rights were violated because he was questioned before he was able to consult with a lawyer. McPhalen didn't weigh on the addition of the TV camera, only referring to it as "unusual."

Still, he was ordered detained until his deportation, which could be days away.

A spokesperson for the Canada Boarder Services Agency wasn't immediately available to respond to either the concerns about the TV cameras or the board's finding that an immigration officer violated one of the worker's charter rights.

A statement issued a day earlier defended the agency's participation in the reality TV show as a valuable public relations exercise, describing it as "an opportunity to communicate Canada’s commitment to border security."

The statement insisted participation in the TV program was "strictly voluntary," though the statement didn't elaborate on how the agency ensured that was the case.

Force Four Entertainment, the production company, has previously said the workers were asked to sign a release form to allow the footage to be broadcast. "Border Security" airs on Global TV and National Geographic.

The immigration officers arrived Wednesday at a construction site in Vancouver, a low-rise condo building being built, with a warrant to arrest a worker suspected to be there. Aviles Hernandez was not the initial target of the raid, but the officers also believed there could be other people working illegally in the building, the board heard.

Immigration officer Keith Mechler, who arrested Aviles Hernandez, told the board that 12 officers and a supervisor arrived at the work site. They arrived with a camera operator and a sound technician from Force Four Entertainment, the company behind the "Border Security" reality program.

Four of the officers, including Mechler, entered the building with the television camera, said Mechler.

Mechler said he encountered Aviles Hernandez on the building's second floor. After a few questions, Aviles Hernandez asked to phone his wife to arrange a lawyer, but there was no answer.

Mechler continued the questioning anyway, which the board found violated Aviles Hernandez's rights.

Aviles Hernandez entered Canada illegally in early 2010, but filed a refugee claim soon after, the board heard.

His refugee claim was denied, as was an application to remain in Canada on the basis that he would face a risk in Honduras. He was ordered to leave the country in December 2011, but has been in hiding ever since.

In the meantime, he entered a relationship and was married to his Canadian-born wife last November.

McPhalen noted Aviles Hernandez has already been ordered to be removed from Canada and the only issue before the immigration board is whether he should remain in custody until that happens.

McPhalen pointed to Aviles Hernandez's previous attempt to avoid deportation as he ordered him to remain in custody.