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Focus: Immigration detention under fire

Focus on: International/Cross-Border Law
|Written By Gabrielle Giroday

Lawyers say a recent Federal Court of Canada case shows the need for Canada to overhaul the way the country deals with the detention of immigrants.

In Alvin Brown v. The Minister of Citizenship and Immigration, lawyers for Alvin Brown argued his detention violated the Canadian Charter of Rights and Freedoms.

According to a submission by his lawyers, Brown was deported in 2016, after five years of being in immigration detention.

In May, there was a two-day hearing in Brown’s case, where lawyers argued that the current immigration detention regime violates ss. 7, 9 and 12 of the Charter.

“[I]t puts the question of the constitutionality of indefinite detention squarely before the court,” says Jared Will, principal of Jared Will & Associates, who acted for Brown with Jean Marie Vecina.

“It also asks the question of if you’re holding somebody for immigration purposes but it’s clear that the immigration purposes are futile, can you continue to hold them? In other words, is there sufficient protection against arbitrary detention?”  

According to a submission to the court, Brown — a citizen of Jamaica — had come to Canada when he was seven years old, before becoming a permanent resident the following year.

In 2005, he was ordered to be deported for serious criminality and lost his permanent resident status and was detained by the Canadian Border Services Agency in 2011. He was in provincial maximum-security jails for five years while there were efforts to get him a travel document to return to Jamaica, even though his lawyers say he had co-operated with the process.

“Mr. Brown’s detention and its indeterminate nature were prejudicial not only to his liberty interest, but also to his mental health and security of the person,” said a submission to the court.

Karin Baqi, a staff lawyer with the South Asian Legal Clinic of Ontario, says, “There seems to be this situation happening in Canada where there [are] a number of people that have been detained for many years without any recourse.”

Baqi was co-retained to represent the End Immigration Detention Network, a third party at the proceeding, with co-counsel Swathi Sekhar.

EIDN is a grassroots coalition of past and present detainees and their families, as well as organizations and allies, and it describes itself as “in support of migrants indefinitely imprisoned without charges or trial.”

“Canada is one of the few western countries without a time limit on detentions,” said a press release by EIDN in reference to the case.

“Detainees, advocates, and the United Nations have criticized the lack of fair judicial oversight in the federal system. EIDN is asking the court to instruct the federal government to create legislative reform to end indefinite detention.”

Baqi says immigration detention is legally not meant to be punitive but to be preventive.

“Yet, it seems like so many things around [detention] resemble punishment, and that’s a problem,” she says.

Baqi says people are held indefinitely and they don’t know when they’ll be out, or removed or released from Canada.

That uncertainty leads to stress, she says.

“They’re often held in maximum-security provincial jails even though they have not actually committed a crime,” she says, noting others are held in immigration detention centres.

At particular issue are long-term cases where people are held with no end in sight, like in cases where a person may not have identification such as a passport.

“We are saying there need to be some protections and some measures to control that,” she says.

“So, what we’ve been asking for — what Alvin Brown and EIDN have been asking for — is called the presumptive limit, so that would be a time limit that people can be held in immigration custody.”

Baqi says the argument is that if after that time limit expires, if a person is not removed or deported, the person could be released.

“That’s where the international piece comes in because many countries — pretty much the whole [European Union] — has a presumptive time limit, recognizing that because immigration detention is not supposed to be punitive, it’s administrative, the government has to do its due diligence in getting those travel documents, and if they can’t, then the person ought to be released, because it’s their fundamental liberty interest at stake,” she says.

Baqi says Justice Simon Fothergill reserved his decision after the hearing.

The Department of Justice Canada pointed to the CBSA as the contact for the matter.

The CBSA did not provide comment specifically on the Brown matter, stating it was currently before the courts.

However, the CBSA pointed to the National Immigration Detention Framework, which was announced last August by federal Minister of Public Safety and Emergency Preparedness Ralph Goodale.

“The new framework will create a better, fairer immigration detention system for the humane and dignified treatment of individuals while upholding public safety,” said an email statement from the CBSA.

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