Canada’s practice of indefinitely jailing immigration detainees does not violate the Charter of Rights and Freedoms, a Federal Court judge ruled Tuesday.
“The question of when detention for immigration purposes is no longer reasonable does not have a single, simple answer,” Justice Simon Fothergill wrote in his 58-page judgment. “It depends on the facts and circumstances of the case.”
Lawyers representing former immigration detainee Alvin Brown — who spent five years in a maximum-security jail before the government was able to deport him to Jamaica last September — had argued that Canada’s entire immigration detention regime was unfair and unconstitutional. They called upon the court to set a maximum length of time the government could detain non-citizens while trying to deport them, as is the case in some other countries.
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Fothergill dismissed their application, writing that the system’s “shortcomings” were due to the misapplication of the law, not the law itself. When “properly interpreted and applied,” he wrote, existing regulations comply with the charter.
Jared Will, Brown’s lawyer, said the fact the law can be misapplied and does not protect detainees against its misapplication is the problem. Existing laws put “too much confidence and too much power” in the hands of immigration officials, he said. “What we’re looking for is a resolution that will provide the adequate, necessary protection.”
Will said he intends to appeal the judgment, and a key part of the court ruling allows that to proceed, as Fothergill certified a question specifically about establishing a time limit on immigration detention.
“The Federal Court of Appeal and maybe one day the Supreme Court will hear and decide these issues,” Will said.
In addition to Brown’s case, the court also heard evidence from five other former immigration detainees and their families. Their stories were shared by the End Immigration Detention Network, which was granted third-party standing in the case.
Every year, Canada’s border police detain thousands of people who have been deemed inadmissible to the country and classified as a danger to the public — usually because of past criminal charges or 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.
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 earlier 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 every 30 days.
The relative fairness of the detention reviews was a key part of the Federal Court case, with Will and lawyers representing the End Immigration Detention Network arguing that the hearings were inherently unfair.
Citing many of the same complaints that more than a dozen immigration lawyers raised in interviews with the Star, Will argued that the detention reviews are stacked against detainees because, among other reasons, the government’s submissions are taken as fact, disclosure is not provided to detainees and there is, practically speaking, a “reverse onus” on the detainee to justify release rather than on the government to justify continued detention.
But Fothergill found these problems do not mean the system itself is broken.
“If the (Immigration and Refugee Board) does not respect these standards in practice, this is a problem of maladministration, not an indication that the statutory scheme is itself unconstitutional,” he wrote.
Unlike some other countries, Canada has no maximum length of immigration detention, an aspect of the system that has been widely criticized. Two years ago, the United Nations Human Rights Committee called on Canada to set a “reasonable” time limit for such detention.
In the European Union, most countries have set an 18-month limit on immigration detention, while several countries have set even lower thresholds.
Courts in the U.S., meanwhile, have ruled that if after six months deportation is not likely in the “reasonably foreseeable future,” the detainee should be released.
Will had asked the court to declare immigration detention unconstitutional when it extended beyond six months, and that detainees be immediately released after 18 months. Lawyers for the End Immigration Detention Network sought a 90-day limit.
Scott Bardsley, a spokesman for the federal Public Safety Ministry, which oversees immigration detention, said the government is currently reviewing Fothergill’s decision. He reiterated the government’s previous commitment to create a “better” and “fairer” immigration detention system by expanding alternatives to detention, improving conditions at federal immigration detention facilities and reducing the use of provincial jails.
Bardsley pointed out that under the Liberals the number of immigration detentions has decreased and that the government “continues to work on real improvements to our system.”