In a recent ruling, the Federal Court of Appeal confirmed that indefinite detention in the immigration context is constitutional. But in Brown v. Canada (Citizenship and Immigration, it also clarified the obligations of Canada Border Services Agency officers and members of the Immigration Division tribunal when making decisions about immigration detention. There are lessons in this ruling for the Immigration and Refugee Board of Canada, which must now update its detention guidelines
According to Ben Liston, a lawyer for the Canadian Association of Refugee Lawyers and the Canadian Centre for International Justice, both intervenors in the case, "the detention review process had not been playing out in consistent [ways] with how the court said it should be playing out. The court's guidance must be followed and is now binding on absolutely every CBSA officer and every tribunal member going forward."
In Canada, failed refugee status claimants, people without legal status, and anyone stripped of their permanent residence due to criminal convictions can be detained prior to deportation if they pose a flight risk or a danger to the public, and if their identity cannot be confirmed.
This was the case for Alvin Brown, who was born in Jamaica, moved to Canada when he was eight years old in 1983, and became a permanent resident in 1984. He struggled with drug addictions and mental health issues and was stripped of his permanent residency after a series of drug and weapons-related convictions led to a finding of criminal inadmissibility. In 2011, the CBSA detained Brown pending his removal to Jamaica. The agency considered him to be a danger to the public and a flight risk. For five years, he was held in maximum-security immigration custody until the Jamaican consulate issued travel documents in September 2016. Brown was then released and deported to Jamaica.
Advocates have consistently argued that Canada's regime of indefinite detention and the conditions of imprisonment violate the Canadian Charter of Rights and Freedoms and is falling behind international norms on immigration detention.
UN guidelines state that detention cannot be "unlimited or of excessive length." Unless they bear some responsibility for their situation, detained migrants should be released to avoid potentially indefinite and arbitrary detention. A 2008 directive by the European Parliament similarly imposes a maximum detention period of six months.
While the court in Brown upheld Canada's regime of indefinite detentions, it nevertheless clarified how it should be interpreted to be constitutionally valid under sections 7, 9 and 12 of the Charter, and meet the proper burden of proof, observe previous detention decisions, and be procedurally fair.
Significantly, the three-judge panel stated that "for continued detention to be legal under the Immigration and Refugee Protection Act, there must be a nexus between detention and an immigration purpose. While the purpose of deportation is valid, detention isn't possible in the absence of deportation.
The "nexus" requirement is a welcome update to the current Immigration and Refugee Board of Canada Detention Guidelines. The court's emphasis on the "possibility of deportation" raises questions, however. How should this phrase be interpreted, and what burden does Immigration, Refugees and Citizenship Canada have in demonstrating that deportation remains possible? The guidelines are not clear on this point, and the court offers no specific definition.
Even so, the Federal Court of Appeal articulated five essential points that should inform how the IRB will update its detention guidelines.
First, the "possibility of deportation" test must focus on "the existence of objective, credible facts. The decision-maker must be satisfied, on the evidence, that removal is a possibility. The possibility must be realistic, not fanciful, and not based on speculation, assumption or conjecture. It must be […] detailed and case-specific enough to be credible."
Second, the court emphasizes the importance of good faith in assessing efforts to remove someone. In particular, "attention should be paid to all steps taken or that could reasonably be taken to procure the necessary travel documents, and whether the CBSA has actively used the time between periods of detention and release to advance the detainee's removal." In other words, if there is no good faith attempt to remove the individual where deportation is a possibility, detention cannot be justified. "The conduct of the receiving country may explain the delay," the court writes. "Canada has the tools necessary to obtain cooperation, whether through escalating levels of diplomatic and political pressure, negotiated bilateral return agreements or placing visa or other entry requirements on nationals from the delinquent country. The question in these circumstances, where there is an impasse, is whether there is a proposed demarche or next step that is likely to advance the process?"
Accordingly, continued detention should not be allowed just because there's a plan to circumvent the impasse when deportation has become impossible. The IRB Detention Guidelines should clarify this distinction and can use the Federal Court of Appeal's comments as support. For instance, the court makes it clear that the Immigration Division member should determine whether time has been used "between periods of detention … to advance the detainee's removal."
Third, the longer an individual remains in detention, the heavier the burden to prove that deportation remains a possibility: "With the passage of time, the assertion that removal remains possible requires a more probing inquiry," the court held. The IRB Detention Guidelines should emphasize this point. The clarification would also partially address where to draw the line between an impasse and an impossibility of deportation.
Fourth, the court held that the "legality of a detention order pending removal is underpinned by a finding, on the evidence, that removal remains a possibility." The government must therefore disclose evidence concerning the possibility of removal. The court emphasized that "[d]etainees are entitled to know what evidence IRCC has to justify that removal remains a possibility. What's more, "relevant evidence of communications with a receiving country ought to be disclosed in advance of the hearing." Again, the IRB Detention Guidelines should emphasize the court's point on these, barring which detention decisions may be vitiated.
Finally, the FCA acknowledged that "[t]here may be circumstances where a detention, by virtue of its duration or the conditions of detention affects the liberty interest of the detainee so significantly that the Charter rights of the detainee are offended and release is warranted." But it left that discussion for another day.
Indefinite detention under the IRPA remains constitutional in Canada, a fact that undoubtedly will continue to be harmful to detainees, particularly those who, like Alvin Brown, are held in maximum-security prisons for many years.
Still, the Federal Court of Appeal's recent comments are promising. They underscore that detention is only constitutional if IRCC can show a nexus between detention and an immigration purpose, such as deportation. The court has urged IRCC to act in good faith and demonstrate reasonable and active attempts between detention periods to remove an individual. Also, it must disclose all related evidence to show such attempts before the hearings. Failing that, detainees should be released.
Time will tell what the impact of this decision will be, given the court's insistence that the duration of detention has little bearing, if any, on assessing the possibility of deportation. Unfortunately, this means that the Charter impacts of detention duration and prison conditions will be assessed on a case-by-case basis. Only in some appropriate circumstances will there be a finding that there is a violation of a detainee's Charter rights.
Still, the IRB should be transparent and specific—especially in light of the new standard of review following the Supreme Court’s Vavilov ruling—about the factors that decision-makers ought to consider when assessing the "conditions of detention" and whether they are "disproportionate." In applying the principles set out by the Federal Court of Appeal in Brown in a reasonable and consistent manner, decision-makers can move Canada in the direction of a detention regime more in line with international human rights norms as well as the Charter.