Detaining immigrants legal, federal court rules

Constitutional challenge rejected

The Federal Court of Canada rejected a constitutional challenge attacking the legality of detaining immigrants, saying checks and balances give enough protection to keep Canada’s immigration act on the right side of legal.

After hearing a battery of complaints about the detention of immigrants who are difficult to deport, however, Justice Simon Fothergill said cases deviating from the expected process are a problem of bad management by the Immigration and Refugee Board not the legality of the process.

Evidence heard in the case was enough of a concern for Fothergill to issue a reminder to the IRB of the minimum legal requirements for immigration detention.

“The question of when detention for immigration purposes is no longer reasonable does not have a single, simple answer. It depends on the facts and circumstances of the case,” Fothergill said in his written decision, released Tuesday.

It is up to the IRB to make the assessment of each case, with the availability of court appeals as oversight.

“The availability and effectiveness of these review mechanisms are sufficient to render the statutory scheme constitutional,” Fothergill wrote.

“If the ( IRB) does not respect these standards in practice, this is a problem of maladministration, not an indication that the statutory scheme is itself unconstitutional.”

Fothergill also allowed for a future hearing to consider whether a cap should be placed on the length of time someone can remain in immigration detention before release is mandatory.

The case involves Alvin Brown who came to Canada from Jamaica as a child but never became a Canadian. After a drug trafficking conviction in 2000, he was deemed inadmissible to Canada. He fought deportation through the courts. In 2010 he was convicted of robbery and uttering death threats and Canada Border Services Agency arrested him in 2011 pending deportation.

It took five years for Jamaican authorities to accept Brown’s return, during which time he was held in jail. Although he was deported before his case came to Federal Court, an activist group called End Immigration Detention Network ( EIDN) joined his challenge and the court opted to hear it regardless.

The detention issue has raised concern for years.

In 2016, 5,886 people were detained for immigration purposes: 1,086 in Quebec; 3,145 in Ontario; 1,487 in the Pacific region; 257 in Prairies; and 30 in Atlantic Canada, court heard. The most common reason for detention was the person was unlikely to appear for an examination, an admissibility hearing or removal. Only 362 of those detained were considered a danger to the public.

The court appeal claimed such detention breaches the Charter of Rights guarantee of life, liberty and security of the person, and the right not to be arbitrarily detained.

Brown and t he EIDN argued the IRB makes detainees justify their release rather than requiring the government to justify detention, and detainees are not given a reasonable opportunity to know the case against them. They also complained the IRB orders detention but does not control detention conditions for detainees sent to provincial jails.

Particularly problematic are cases where there is little prospect of a detainee being deported, such as the case of The Man With No Name, highlighted by the National Post. The man, eventually identified as Michael Mvogo, was detained for eight years because his identity could not be confirmed.

Such cases becomes indefinite and arbitrary and run afoul of international law, lawyers for Brown and the EIDN argued.

Court heard evidence from previous detainees, lawyers and professors highlighting problems with the immigration detention system.

Evidence included an affidavit from Kyon Ferril, who came to Canada as a child and was later convicted of eight crimes, including robbery. After his sentence was finished he was thrown back in jail pending deportation. He was detained for more than three years because of his immigration status, during which he had about 40 detention reviews by the IRB, often by the same adjudicator and lasting just five minutes, court heard.

While in immigration detention Ferril was badly beaten by other inmates. When the attackers came for him a second time he defended himself with a sock filled with dominoes, for which he was charged with assault with a weapon, he said.

Fothergill considered the complaints before releasing his decision. He said case law is clear: the onus is always on the government to prove detention is necessary.

“Mr. Brown and the EIDN raise legitimate concerns about the timeliness and quality of pre-hearing disclosure. However, this is again a problem of mal administration, not an indication that the statutory scheme is itself unconstitutional,” wrote Fothergill.

He said detainees may challenge the location and conditions of their detention in a variety of ways, including through the Federal Court.

THE QUESTION ... DOES NOT HAVE A SINGLE, SIMPLE ANSWER.