Detention rules called ‘unjustifiable’
Lawyers for former detainee make case to Federal Court for shorter time limits
The entire system by which Canada indefinitely jails the people it wishes to deport is unconstitutional and should be dramatically redesigned, Federal Court heard on Monday.
Lawyers representing former immigration detainee Alvin Brown, who was deported to Jamaica last year after spending more than five years in maximum-security jail awaiting his removal, argued that Canada’s immigration detention system violates multiple sections of the Charter of Rights and Freedoms, namely the rights not to be indefinitely and arbitrarily detained and to be protected from cruel and unusual treatment.
Not only does Canada’s current system not protect those rights, lawyer Jared Will told Justice Simon Fothergill, it “sanctions” their violation. Maintaining the status quo is “unjustifiable” and unconstitutional, Will said. “The more complicated question is how to fix it.”
Canada’s border police agency detains thousands of non-citizens every year if they have been deemed inadmissible to the country and classified as a danger to the public because of past criminal convictions, or unlikely to show up for their deportation. The average length of detention is about three weeks, but many cases drag on for months or years. One common problem is detainees who lack documentation to prove their citizenship, so their home country refuses to take them back. Although the detainees have not been charged with a crime, many are sent to maximum-security provincial jails, where they are treated the same as those serving criminal sentences or awaiting trial.
A Star investigation this year into immigration detention in Canada found a system in which hundreds of unwanted immigrants were languishing indefinitely in conditions meant for a criminal population. The Star found that detainees are also poorly served by the quasi-judicial Immigration and Refugee Board, which reviews their detentions.
Last month, Ontario Superior Court ordered the immediate release of Kashif Ali, a 51-year-old West African man, profiled by the Star, who spent more than seven years in maximum-security jail because the government could not deport him.
Calling Ali’s situation “unacceptable,” Justice Ian Nordheimer roundly criticized the government, saying it could not justify indefinite detention.
Will, who also represented Ali, cited Nordheimer’s decision Monday as he tried to persuade Fothergill to de- clare Canada’s laws governing immigration detention unconstitutional and to impose a six-month limit on detention for immigration purposes.
In a courtroom packed with supporters of the End Immigration Detention Network, a coalition of advocacy organizations that was granted third-party standing at the hearing, Will and his colleague Jean-Marie Vecina outlined a litany of problems with the immigration detention regime. Among them:
The monthly detention reviews are procedurally unfair, offer insufficient protection for detainees’ rights and amount to little more than a rubber stamp.
There is a “legislative vacuum” regarding where detainees can be held, granting Canada’s border police agency wide latitude and unchecked discretion to jail detainees wherever they like. (“They can put one person in a five-star hotel and the other person in a maximum-security jail,” Will said.)
The lack of a defined maximum length of detention — as is currently in place in other countries and has been recommended by the United Nations — permits indefinite detention even when there is no reasonable prospect of removal.
Will pointed to countries that already have such a prescribed deadline in place, including those in the European Union, which affords an extension to hold someone in immigration detention for up to 18 months, at which point they must be released. Courts in the U.S. have ruled that if the government can’t prove deportation is “reasonably foreseeable” after six months, the detainee should be released.
The government itself this year announced it was “exploring” policy changes to reduce the length of immigration detention, expand alternatives to detention and limit the use of criminal jails, but it has yet to make any meaningful changes.
The government will make its case in defence of immigration detention on Tuesday.