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Detaining immigrants

|Written By Elizabeth Raymer
Detaining immigrants
Illustration: Sebastien Thibault

Immigrants in Canada can be held in indefinite detention for many years, and a group of dedicated advocates is pushing to change that. In May, a group of lawyers representing a man who had been detained for more than five years in a maximum-security jail before being deported to Jamaica appeared in Federal Court in Toronto. They were launching a challenge to the practice of indefinite immigration detention, arguing that the practice violates detainees’ rights under the Canadian Charter of Rights and Freedoms.

Canada, unlike some other countries, has no maximum length of time for which a detainee may be held. And that’s a situation that needs to be rectified, say immigration lawyers who represent long-term detainees.

The Canada Border Services Agency, a branch of Public Safety Canada, is entitled to hold a non-citizen for an indefinite period of time if that person is deemed to be a flight risk, a danger to the public or is unable or unwilling to prove or reveal his or her genuine identity. Although the average length of immigrant detention in Canada is about 20 days, the extreme cases prompt the calls for change.

Victor Vinnetou, a South African man who was the longest-serving detainee in the Canadian immigration custody system, was held for 11 years before being released in January 2016 (he had apparently arrived in Canada on a false passport and refused to co-operate with efforts to establish his true identity). 

In some cases, immigrants may be held in indefinite detention because they are unable to document their birth or parentage. Kashif Ali from Ghana, who had lived in Canada for three decades or so without legal status, was held in detention for seven years as he was unable to prove his citizenship and Canada was not able to deport him to either of his parents’ countries of origin (Ali brought a successful habeas corpus application this past spring that resulted in his release).

Jamaican national Alvin Brown, a permanent Canadian resident, spent approximately five and a half years in a maximum-security prison before his deportation in September 2016; he had allegedly refused to co-operate in obtaining a travel document. 

Brown’s lawyer, Jared Will (who also represented Ali), appeared before Justice Simon Fothergill in the Federal Court with several other lawyers in May and identified a number of deficiencies in Canada’s detention regime that Will says resulted in violations of ss. 7, 9 and 12 of the Charter. The lawyers proposed a list of remedies the court could make or, in the alternative, sought an order striking down the detention regime and leaving it to Parliament to legislate.

Section 7 guarantees “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”; s. 9 guarantees “the right not to be arbitrarily detained or imprisoned”; and s. 12 guarantees “the right not to be subjected to any cruel and unusual treatment or punishment.”

Will says the most recent statistic he had seen showed that 53 people across Canada had been in detention for more than six months, down from “closer to 160” a year ago. However, “a statistical trend you see . . . is that the longer you’re in, the less likely you are to get out. Once people start pushing the six-month, one-year [detention periods], those are the ones you’ll see in for a long time.”

Anthony Navaneelan, a counsel in the Refugee Law Office at Legal Aid Ontario, told attendees at a detention panel at the Canadian Bar Association’s Immigration Law Conference in June that he believed that two years maximum would be an appropriate period of detention for immigrants. This is in line, he said, with penal code provisions for non-co-operation, which carry a maximum sentence of two years in prison.

And in last year’s landmark decision R. v. Jordan, the Supreme Court of Canada ruled that completion of criminal proceedings should take no more than 30 months in the superior courts, he added.
Barbara Jackman, of Jackman Nazami & Associates in Toronto, successfully argued Chaudhary v. Canada (Public Safety and Emergency Preparedness) before the Ontario Court of Appeal in 2015.

In that case, the court’s ruling allowed immigration detainees to apply to the Superior Court of Justice for habeas corpus to challenge their incarceration.

Habeas corpus cases before the Federal Court are subject to review every 30 days. In reviewing a case for detention review (Canada (Citizenship and Immigration) v. Harkat), Jackman says she noted that the Federal Court put the onus on the detainee to show that he should be released. “That’s not true in criminal cases,” she notes.

“I’ve been practising in this area for a long time,” says Jackman, but it wasn’t until she assisted in Ogiamien v. Ontario, 2016 ONSC 3080 — a case involving two inmates, one of them an immigration detainee since 2013, who successfully argued that their Charter rights were violated by lockdowns at a Milton jail last year — that she realized “there’s no structure to the detention system. 

“There are manuals [and legislation] for how people are to be treated in the criminal system, but in the immigration system, you just go into a black hole. . . .  It’s wrong,” she says. “We don’t do this in any other area of the law.”

Minister of Public Safety and Emergency Preparedness Ralph Goodale announced last August an investment of $138 million to improve and minimize the use of immigration detention, including expanding alternatives to detention and strengthening partnerships with the Red Cross and United Nations (which in 2015 issued a report saying that Canada’s treatment of immigration detainees was cruel and unusual and resulted in arbitrary detention). The CBSA has also started publishing statistics about immigration detention, and the number of immigration detentions has decreased under the new government, despite an increase in visitors to Canada, according to Public Safety Canada. 

But Hanna Gros, a senior fellow in the International Human Rights Program at the University of Toronto’s Faculty of Law, suggests it’s not so much the investment made as what Canada does with those funds that will help long-term detainees. Gros has coauthored three reports on the effects of long-term detention on detainees, including children. The most recent report, “Invisible Citizens: Canadian Children in Immigration Detention,” was published in February. That study found that, since 2011, Canada has housed more than 200 Canadian minors in detention in Toronto’s Immigration Holding Centre, alongside hundreds of formally detained non-Canadian children, and its authors recommended that Canada implement alternatives to the detention of children rather than confining them in immigration detention facilities or separating them from their detained parents.

The main recommendation of the three reports is that the government rely more on alternatives to detention, and allow immigrants to stay in non-custodial and community-based settings, says Gros. “In other countries, authorities can continue to supervise people from the community without imprisoning them,” she says. “The alternatives are affordable.” And in terms of mental health, it’s hard to compare the impact of detention versus the alternatives, she says.

The IHRP has enjoyed “a fruitful working relationship with the CBSA” since the IHRP published its second report, “No Life for a Child: A Roadmap to End Immigration Detention of Children and Family Separation,” in September 2016, says Gros. “There has been a lot of movement in this area; they’ve taken up a lot of our recommendations . . .  and we’ve been pleased that the numbers of children in detention has been going down” and that the CBSA has started to publish its detention statistics online.

Of the $138-million investment, though, she notes that “while any investment is welcomed, it’s also important that the money [is] being funnelled toward the right solutions.” While the CBSA has been taking up the issue of indefinite detention on a policy level, “when it comes to children, we recommended that the law be changed to align with international human rights law, specifically on the rights of the child.” 

Section 60 of Canada’s Immigration and Refugee Protection Act indicates that the best interests of children be taken into account as a factor in detention situations; however, the United Nations’ Convention on the Rights of the Child stipulates that the best interests of children must be a primary consideration, Gros says.

“So, there’s a clear gap between our immigration law and international rights of the child; we must ensure that children are protected as required by international law.”

Will, whose Charter case on behalf of former detainee Alvin Brown is now being decided by the Federal Court, has also seen “a lot of movement” on indefinite immigration detention in recent years.

But, he says, “What they don’t seem to be seriously considering are firm limits on the duration of detention. They also are not committing to ceasing to use provincial maximum-security jails for immigration detention. And there’s no real discussion of the principle of reasonable prospect of removal to justify prolonged detention. Those are the most serious limitations.”

Some of these problems will take legislative or judicial change to fix, Will notes, and he doesn’t see the current government as interested in such legislative reform. “Our only hope is for some sort of judicial intervention,” he says, adding that “the courts are starting to notice and have these issues brought to their attention.”

Will says that, to his knowledge, there have been only a handful of habeas corpus cases that have been litigated, but “there will certainly be more to come,” including a couple that he will be filing in the next few months.

Jackman is less optimistic about the prospects for judicial change, at least at the Federal Court level. She says she hasn’t “seen this happen before on contentious issues,” although she allows that the issue may be tested again by the Supreme Court of Canada, particularly as the last indefinite immigration detention case decided by the Supreme Court was in 2007. Charkaoui v. Canada (Citizenship and Immigration) was a security certificate detention appeal that had been working its way through the legal system since 1992 and was decided in the appellants’ favour. 

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