Put limits on detention

This week’s federal court ruling that the indefinite jailing of immigration detainees does not necessarily violate the Charter of Rights and Freedoms should not be confused with an endorsement of Canada’s broken detention regime.

The court acknowledged that our system, which too often leaves unwanted migrants, convicted of no crime, languishing in maximum-security prisons for years at a time, is in need of reform. The Trudeau government should follow through on its promise to adopt a better approach to applying the law.

Moreover, whether or not the current law, which allows for indefinite detention, violates the constitution, it is clearly unacceptable in a democracy. That’s why many of our peer nations, including the United States, have imposed time limits on immigration detentions. The court’s ruling should not discourage Ottawa from joining this international mainstream.

According to Justice Simon Fothergill, the system’s significant “shortcomings” are due to the misapplication of the law, not to the law itself. In particular, the problem is the “misadministration” of the quasi-judicial Immigration and Refugee Board, which reviews cases every 30 days.

There is no doubt some truth in this diagnosis. As an investigative series by the Star’s Brendan Kennedy revealed this year, these reviews amount to little more than automatic rubber-stamp sessions. Detainees are often unrepresented, the government’s evidence is untested and accepted as fact, and there is no meaningful disclosure. Two immigration lawyers described the hearings as “Kafkaesque.”

The case before the federal court was that of former immigration refugee Alvin Brown, who spent five years in a maximum-security jail before the government was able to deport him to Jamaica. His story is by no means unique. Thousands of unwanted migrants are detained without trial, many for just a few weeks, but some, like Brown, for years. The Trudeau government has taken commendable steps to find alternatives to incarceration for these migrants, but clearly much more must be done.

As Jared Will, one of Brown’s lawyers, rightly pointed out, the problems with the current system may not be a necessary consequence of the law as written, but nor does the law preclude them. The Trudeau government should rewrite the legislation to strengthen the review process and constrain the power of immigration officials.

Furthermore, whether or not it is required by the constitution, the government should impose a reasonable limit on how long migrants can be detained. Canada is part of a shrinking group of democratic nations that imposes no such time limit, a fact lamented by the United Nations Human Rights Committee in 2015.

We need only look to the European Union for an idea of what “reasonable” might be. Most countries there have set an 18-month limit on immigration detention, while several countries have set even lower thresholds. Courts in the United States, meanwhile, have ruled that if, after six months, deportation is not likely in the “reasonably foreseeable future,” the detainee should be released. Mexico, too, has a 60-day limit on immigration detention.

Brown’s lawyer says he will appeal the federal court’s ruling, but the Trudeau government shouldn’t wait for a higher court to order it to do what’s right. No one, without trial or conviction, should ever languish indefinitely in a jail cell.