‘Why is this man in prison?’ judge demands at hearing
Single father and refugee claimant has spent 18 months behind bars despite having no criminal record
Ontario Superior Court Justice Edward Morgan spent most of Thursday morning with a furrowed brow and an incredulous look on his face. But his demeanour at first was subdued as he heard the case of Ricardo Scotland, an immigration detainee with no criminal record who is arguing that his indefinite detention in a maximum security jail is a violation of the Charter of Rights and Freedoms.
After the morning break, when the government’s lawyers stood to argue why the court should not release the native of Barbados, Morgan’s apparent confusion with the case became too much to contain.
“Why is this man in prison?” he said bluntly, interrupting Bernard Assan, a lawyer representing the Department of Justice. Assan stammered. The judge continued.
“Why is he incarcerated? He has no criminal record. He has no convictions of anything.”
Assan mentioned the fact that Scotland — who is in the midst of a refugee claim — had faced criminal charges in 2013 that were later stayed.
“That means he’s innocent,” Morgan interjected. “He’s innocent until proven guilty. That’s elementary.”
Scotland’s case is just the latest to put Canada’s immigration detention system — by which the federal government jails non-citizens, often in maximum security institutions, for an indefinite length of time, typically while it tries to deport them — under increased scrutiny.
Scotland, a single parent to his 13year-old daughter, has been held in maximum security jail for a total of18 months in two stints over the past two years. He has been detained at the Niagara Detention Centre in Thorold, Ont., since October.
Scotland’s case is unusual for several reasons — including the fact the government is actually arguing for the man’s release in a separate court proceeding. The case highlights some of what more than a dozen immigration lawyers have previously told the Star are systemic problems with both the Canada Border Services Agency and the Immigration and Refugee Board. The CBSA has the power to arrest and detain non-citizens, while the board is the quasi-judicial tribunal that holds monthly detention reviews to determine whether someone should be released or have their detention continued for another 30 days.
In May, Scotland’s lawyer, Subodh Bharati, and a representative of the government made a joint submission to the board that Scotland should be released. Board members almost always grant release in such circumstances. But in this case the presiding adjudicator rejected the joint submission and ordered Scotland’s continued detention.
That’s when Bharati filed an application for habeas corpus — a legal principle that allows someone to argue their detention is unlawful — with Ontario Superior Court. Immigration detainees are turning more and more to habeas corpus to seek release, citing the inherent unfairness of the Immigration and Refugee Board, which lawyers argue is proce- durally unfair and stacked against detainees. Previously the court has granted release only in cases where detention has been “unduly or exceptionally lengthy,” and the government argues that the length of Scotland’s detention falls below that standard so the court lacks jurisdiction.
They would prefer to maintain the status quo where Federal Court provides what’s called “judicial review” of a decision by the Immigration and Refugee Board. So even though the same government lawyers are currently arguing in Federal Court that Scotland should be released, they don’t want the Ontario Superior Court to be the ones to do it, fearing it would set an unwanted precedent.
Bharati, meanwhile, argued that even a single day of Scotland’s detention is unlawful because it stems from a procedurally unfair process.
Scotland, who is being held solely as a flight risk and is not considered a danger to the public, is under a conditional deportation order, which takes effect only if his and his daughter’s refugee claims are denied.
“It’s absurd that a person with no criminal convictions, a father to a girl who doesn’t have a mom, is being held in a maximum-security prison, despite the fact that he has a refugee claim,” Bharati said.
The girl’s mother is alive, but not involved as a parent in her upbringing.
The basis for Scotland’s continued detention is also contentious. It stems from four alleged breaches of previous bail conditions, three of which were either withdrawn or found by a criminal court to be innocent mistakes. The fourth was a technical breach related to a miscommunication of a change in curfew. Immigration authorities view the alleged breaches differently than the court, however.
Morgan could not believe that one of the breaches was the fact Scotland had not reported a change of address to immigration officials after he was arrested. His new address was jail.
Morgan will decide Monday morning whether Scotland should be released.