‘MR. SCOTLAND IS BEING HELD IN PRISON FOR NO REAL REASON AT ALL’
Single father Ricardo Scotland has no criminal record, yet he spent 18 months locked up in a maximum security jail while his refugee claim was processed. On Monday, in a scathing rebuke of Canada’s immigration detention system, Justice Edward Morgan order
Ordering the immediate release of immigration detainee Ricardo Scotland, who has spent the past10 months in maximum security jail despite not having any criminal charges or convictions, Ontario Superior Court Justice Edward Morgan was unequivocal in his condemnation of federal immigration authorities.
“Although the government cannot provide a clear rationale for Mr. Scotland’s initial or continued detention, the reason for this lack of clarity is itself clear to me,” he said in court Monday. “There is no rationale. Mr. Scotland is being held in prison for no real reason at all.”
Morgan’s decision is the latest rebuke to Canada’s immigration detention system, by which the federal government jails non-citizens, often in maximum security institutions, for an indefinite length of time without trial.
Scotland, a 38-year-old refugee claimant from Barbados and a single parent to his 13-year-old daughter, has spent a total of 18 months in a maximum security jail during two stints over the past two years.
He has no criminal record, but he was detained by Canada’s border police — the Canada Border Services Agency (CBSA) — as a flight risk while his refugee claim is being processed based on four alleged breaches of conditions related to criminal charges that were later stayed by the Crown.
“Everything (Justice Morgan) said is true,” Scotland said shortly after he was released. “I did nothing wrong.”
All of the alleged breaches were either withdrawn in criminal bail court, or found to be innocent mistakes. Yet the two government bodies that oversee the arrest and detention of non-citizens — the CBSA and the Immigration and Refugee Board — continued to treat the “faux breaches,” as the judge described them, as if they were legitimate transgressions.
As a result, “Mr. Scotland cannot seem to get himself out of custody,” Morgan said. “He appears enmeshed in an endless circuit of mistakes, unproven accusations and technicalities.”
Morgan could not believe, for instance, that the first breach alleged by immigration authorities was the fact Scotland did not inform them of a change of address after he had been arrested.
“What rational person would conceive of police custody prior to receiving bail as a change of address?”
This “imaginative interpretation” of a breach of conditions, Morgan said, was itself based on a “faulty factual premise” because Scotland did, in fact, call the 1-888 number he had for the CBSA to inform them of his arrest, but they never picked up.
Similarly, immigration authorities used other alleged breaches as reasons to keep Scotland behind bars, even after the so-called breaches were disproved or withdrawn.
“Mr. Scotland may have been exonerated for each and every one of the allegations against him but, paradoxically, the more immigration authorities make and then act on errors in his case, the more difficult it gets for him to prove to their satisfaction that his record is the product of a series of errors,” Morgan said, concluding with a literary allusion: “That’s some catch, that catch-22.”
While Morgan’s decision focused on Scotland’s baffling experience, it was also implicitly critical of Canada’s immigration detention system as a whole and some of the systemic issues lawyers and detainee advocates have complained about for years.
Just six sentences into his 15-page decision Morgan was already turning to author Franz Kafka to describe the illogical legal web that had entrapped Scotland.
“As with Kafka’s protagonist, Joseph K., no one knows why he is detained,” Morgan said.
He criticized the Immigration and Refugee Board — the quasi-judicial tribunal, which holds monthly hearings to decide whether an immigration detainee should be released or detained another 30 days — for showing undue deference to the CBSA and “uncritically” accepting their accusations with little or no evidence.
He chastised the board for letting the CBSA determine whether a breach of conditions had occurred, calling it a violation of “one of the most essential principles of fundamental justice” and a “graphic illustration of improper self-judging.”
He also said the board’s misunderstanding of a previous court ruling had created a system where members are so reluctant to depart from a previous decision — even when those decisions are later proven to have been based on faulty information — that it is nearly impossible for a detainee to successfully argue for their release. “The detention review process becomes a closed circle of self-referential and circuitous logic from which there is no escape.”
“Finally, we’re being heard,” Subodh Bharati, Scotland’s lawyer, told the Star after the hearing. “Activists, immigration lawyers, immigration detainees have been saying this for a while: this system is inherently procedurally unfair and violates the principles of fundamental justice.”
Bharati said he hoped Morgan’s strongly worded decision would lead to broader changes in the system.
“Justin Trudeau says this is 2017, look at all the changes. But this is what’s really happening in 2017. This is what the government is doing to people.”
Morgan refused to apply any conditions to Scotland’s release, saying he “was detained for no cogent reason” in the first place.
“I will simply say that Mr. Scotland is to keep the peace and to attend all immigration proceedings and to present himself to immigration authorities as and when required by law.”
Speaking to the Star just moments after Morgan told him he was “free to go,” Scotland — whose refugee claim could be decided next month — said he was looking forward to seeing his daughter, Kalyssa, and getting her ready for the upcoming school year.
“She wants to be a lawyer,” he said of his daughter, who has been taken care of by a friend while he has been in detention.