Immigration detention: a journey through the looking glass

“You know, that might be the answer — to act boastfully about something we ought to be ashamed of. That’s a trick that never seems to fail.” ― Joseph Heller, Catch-22

Ron Poulton
“You know, that might be the answer — to act boastfully about something we ought to be ashamed of. That’s a trick that never seems to fail.” ― Joseph Heller, Catch-22
“It's only because of their stupidity that they're able to be so sure of themselves.” ―Franz Kafka, The Trial 

“Please release me, let me go.” ― Engelbert Humperdinck, Release Me

“The detention review process becomes a closed circle of self-referential and circuitous logic from which there is no escape.” ― Ontario Superior Court Justice Edward Morgan, Scotland v. Canada (Attorney General)

Pick any of the quotes above and apply it to the immigration detention system, recently the subject of vitriolic criticism by Ontario Court Justice Edward Morgan in the case of Scotland v. Canada (Attorney General). That system has been the subject of constant criticism and rebuke over the years, but rarely has a Superior Court judge had a chance to see it for what it is; a highly biased, one-sided system in which a detained person rarely gets a fair hearing.

A bit of background. 

Under the Immigration and Refugee Protection Act, a foreign national who is inadmissible to Canada may be detained on grounds of being a danger to the public or unlikely to appear for examination, an admissibility hearing, removal from Canada or at a proceeding that could lead to the making of a removal order by the minister under s. 44(2), or if an immigration or Canada Border Services Agency officer is not satisfied of the identity of the foreign national in the course of any procedure under this act. Once detained, the detainee has a detention review hearing within 48 hours. If not released, the next detention hearing is held in seven days, and if still detained, another hearing is held 30 days later and, thereafter, every 30 days while the person is detained.

Sounds fair! Far from it, as Morgan noted in his decision. 

The Immigration Division of the Immigration and Refugee Board hears the detention cases. Members of this division do not have to be lawyers, and often are not. Some are former immigration officers, visa officers or CBSA officials. They hear and accept “evidence” at detention hearings in the form of statements from the minister’s representatives, CBSA employees. They rarely if ever question those statements and accept as fact whatever the minister’s representatives say. In order to facilitate release, a bond is often required from a person who can demonstrate that they will ensure that, if released from detention, the detainee will abide by the conditions of release. Depending on the approach of the minister’s representative, the Immigration Division can refuse the bondsperson because they know the detainee too well and so cannot be trusted or not well enough to ensure compliance. 

It was in this Catch-22 system of justice that Ricardo Scotland found himself ensnared for the last 17 months. 

The CBSA had accused Scotland of four violations of the conditions under which he was permitted to live in the community while awaiting the outcome of his refugee application, but Morgan said all four were false or illogical. For example, one was not reporting his change of address to the authorities when he was jailed on a charge that was eventually dropped. Even so, as the false allegations mounted, the adjudicators pointed to the growing total and said Scotland could not be trusted. Morgan mocked that reasoning: “That’s some catch, that Catch-22.” 

What adds to the unusual nature of Scotland’s case is that in May of this year, the minister’s representative had joined Scotland’s counsel at a detention hearing before the Immigration Division, asking that he be released from custody. The presiding member refused, which then led Scotland to seek release through the habeas corpus process in the Ontario Superior Court. 

Morgan laid out in detail the basic flaws in logic from the Immigration Division. For example, it had been demonstrated that the latest allegation against Scotland by the CBSA had been shown to be false — breaking a curfew that no longer existed, being at a car dealership without the surety who guaranteed his bail (a video showed the surety was present), being with a no-longer-prohibited person — the member wrote that being cleared by the evidence was not enough. “The fact that you put yourself in the position to have concerns about with whom you were in contact . . . shows an issue or a concern with your lack of judgment.” 

Ah... OK...

In another supposed breach, Scotland had been reporting to police four times a week for a year — but he did not show up one day and police charged him with violating bail. Appearing before a judge, he explained that the August civic holiday had thrown him off schedule, he had been taking his daughter to cheerleading practice each day and he had confused Friday for Thursday. The judge accepted his explanation and found him not guilty. “He forgot . . . he was happily being dad.” Even so, the CBSA insisted it was a breach and the Immigration Division adjudicator wrote that “it is within their right to find a breach if they find it to be a breach.” 

In the supposed failure to report a change of address, Scotland had telephoned a 1-888 number to tell the CBSA he was in jail, and the CBSA acknowledged as much. But the CBSA insisted it was a breach anyway, and the Immigration Division accepted that view.

After reviewing the logic of the Immigration Division, Morgan wrote, “The detention review process becomes a closed circle of self-referential and circuitous logic from which there is no escape.” 

Scotland was released after 17 months in immigration detention. He had been detained for no crime or allegation of a crime. He had been detained for breaches of conditions he had not breached. In other words, he had been detained on the whims of a bureaucrat. At his detention hearings, those whims were cloaked in quasi-judicial robes. It took an Ontario Superior Court judge to finally see the reality of the system and finally mete out justice.

Detention must always be the last and hardest resort, not the first and easiest.

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