Why Canada needs limits on immigration detention

By Yves Faguy June 12, 201712 June 2017

Why Canada needs limits on immigration detention

 

Immigration detention is a form of administrative detention, and as such should be brief.  But while that may be true for a large majority of immigration cases, says Anthony Navaneelan, a lawyer with the Refugee Law Office at Legal Aid Ontario, we’re seeing more and more cases “where individuals are being detained for extremely long periods of time” under the Immigration and Refugee Protection Act.

Navaneelan, who was part of a panel discussion on immigration detention at the CBA’s Immigration Law Conference in Toronto last week, was making the case that there should be a clear time limit on immigration detention.  Unlike some other countries, Canada has not set a maximum length of time a person can be held.  Navanaleen proposes that limit be set at two years.

To be fair, the Canadian government has made efforts to reduce the length of detentions in Canada. According to the Canadian Border Services Agency, the average duration in 2016-2017 was 19 days, down from 23 days in 2015-2016. The figure has dropped by 20.4 per cent over the last three years.

Even so, the CBSA can still hold a non-citizen for an indefinite period of time if are deemed to be a flight risk or a danger to the public, or that person is unable to prove his or her identity.

The most egregious case is that of a South African man, Victor Vinnetou, who holds the record as the longest-serving detainee in Canada’s immigration custody system.  He was held for 11 years before being released last year, in part because he refused to cooperate in helping establish his identity.

Jamaican national Alvin Brown spent five years in jail before his deportation in 2016.  His lawyer, Jared Will, recently appeared in Federal Court to argue that his lengthy detention violated the Canadian Charter of Rights and Freedoms, namely his section 7 rights against arbitrary and indefinite detention and cruel and unusual treatment.

Another long-term detainee, Kashi Ali from Ghana, has been held for 7 years, unable prove his citizenship.

Navaneelan reminded the audience in Toronto that detention in immigration matters “is a tool to help the minister achieve his objectives, most importantly the removal of inadmissible persons and the protection of the public… But the analysis can’t end there,” he says. “The minister’s objectives have to be weighed against the individual’s liberty.”

The starting point for that analysis is the 1995 Sahin ruling, in which the Federal Court held that “what amounts to an indefinite detention for a lengthy period of time may, in an appropriate case, constitute a deprivation of liberty that is not in accordance with the principles of fundamental justice.”

It further ruled that several factors (known as the Sahin factors) must be considered before a decision is made to continue detention or order release: the reason for detention; the length of time; any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time; any unexplained delays or unexplained lack of diligence caused by the department or the person concerned; and the existence of alternatives to detention.

What’s important to remember, says Navaneelan, is that indefinite detention must not be interpreted to mean endless.

How can it happen, then, that a detainee gets stuck in a system by having to appear before immigration division every 30 days for 11 years, only to be ordered to be detained over and over again.  “No one stops to say that something might be wrong here, both in law and, in my opinion, in terms of common sense,” says Navaneelan.

Not only could it be unconstitutional, but he says that holding detainees until they cooperate “makes the nature of the detention starts to look penal rather than administrative.”

Even then, he says, we find ourselves in a rather odd situation in Canada “where the maximum penal consequence for non-cooperation is two years, and yet individuals can be held up to 11 years on an administrative basis for the exact same reason.”  He argues that the two-year cutoff for detention in penal situation is Parliament’s way of saying that “the consequences of non-cooperation should not result in a loss of liberty of more than two years.”

What’s more, long-term immigration detainees are generally held in provincial jails, which are meant to house sentences of two years or less, but where there is also a lack of programming and rehabilitation for detainees.

Finally, Navaneelan points to the recent Jordan ruling handed down by the Supreme Court. Though the case has no direct application in the immigration context, it does say that in criminal matters, the law enforcement community ought not be holding individuals for more than 30 months to achieve their objectives, which is to conclude a criminal trial.  Says Navaneelan: “If the Supreme Court is saying we can keep people on remand for 30 months — even in murder trials — I think that can give us significant pause when people are being held administratively for much longer.”

 

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