Federal Court Upholds Immigration Detention Laws Despite Potential for Detainees to be Held Indefinitely

This week the Federal Court came to a decision in the case of Alvin Brown, who spent more than five years in immigration detention before being deported. Brown’s lawyers presented the court with a challenge under the Charter of Rights and Freedoms to the laws that allow potentially indefinite detention of migrants who are under a removal order. The challenge failed and the laws were upheld. However, the judge certified the constitutional question, which means that the issue may now be appealed to a higher court.

Immigration detention is used in cases where a removal order has been made but there is concern that the person in question will not appear for an examination, inquiry, or removal as ordered, or that they may pose a danger to the public, or where their identity cannot be verified. The detention should only last as long as it takes to properly identify the person or to carry out their removal from Canada. However, situations can arise where it may take a very long time for that to happen, such as when a person’s home country can’t or won’t provide them with travel or identity documents.

There are dedicated Immigration Holding Centres in Toronto, Laval, and Vancouver that are used only for this purpose, but in locations where there is no IHC, a detainee may be held in a provincial jail or prison. Even where IHCs exist, there are several reasons that a detainee might be transferred to a provincial correctional facility, such as, for example, if they have a criminal record or a serious medical condition that the IHC is not equipped to handle.

In Alvin Brown’s case, he was held in a maximum-security facility. The five-year delay was caused by the failure of the Jamaican consulate to issue travel documents for him. He had been living in Canada since he was a child but did not have citizenship, and was declared inadmissible after convictions for drug trafficking, robbery, and uttering threats. Brown suffered from schizophrenia and drug addiction and was considered a danger to the public and unlikely to appear voluntarily to be removed, especially since he had children in Canada and since he had failed to comply with conditions of his release in the past.

The immigration detention laws were challenged under sections 7, 9, and 12 of the Charter: that is, the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice; the right not to be arbitrarily detained or imprisoned; and the right against cruel or unusual treatment or punishment. Counsel for Mr. Brown advocated for a cap on immigration detention along the lines of the U.S. or European systems, wherein a “reasonable” length for a detention is presumed to be six months, after which time evidence must be shown that there is still a significant likelihood that removal will be possible. Counsel also suggested an absolute cap of 18 months.

Justice Fothergill of the Federal Court reviewed evidence that the current system often fails to provide procedural protections in accordance with fundamental justice. Issues identified included: the tendency of detention review boards to pre-judge the outcome of a hearing, creating a reverse onus on the detainee to show why they shouldn’t be held longer rather than on the Minister to show why they should; the inadequate amount of time and information that detainees and their counsel often get to prepare for a hearing; and the lack of control that the Immigration Division has over the conditions the detainee is held in once s/he is transferred to a provincial correctional facility.

Ultimately, Justice Fothergill found that the problems which counsel described did not come from the law itself but from the improper application of the law by immigration authorities. He concluded that “the question of when detention for immigration purposes is no longer reasonable does not have a single, simple answer. It depends on the facts and circumstances of the case. … The availability and effectiveness of [the] review mechanisms are sufficient to render the statutory scheme constitutional.”

In 2016, 5,886 people were detained for immigration purposes in Canada.

Also this week, Public Safety Minister Ralph Goodale announced a contract between Canada Border Services Agency and the Canadian Red Cross to have the CRC monitor immigration detentions by performing regular visits to detention facilities and publishing annual reports.