On Monday, the Federal Court of Canada will hear the first-ever constitutional challenge to the regime, according to Jared Will, lawyer for Alvin Brown. Lawyers for a man who spent five years in maximum security provincial jails before finally being deported to Jamaica are mounting a constitutional challenge calling on the federal government to justify the practice of indefinite immigration detention.
Brown, 40, who his lawyer says battled addiction and mental health issues, lived in Canada for more than three decades before being removed last fall for a series of criminal convictions. But not before he languished behind bars because of what Will says were a series of delays by the CBSA and Jamaican authorities in processing his deportation.
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He was still in custody when his lawyers first filed the challenge, but the case will go ahead despite his deportation as a way of challenging the constitutionality of Canada’s immigration law.
“We talk to people in this situation and the first thing they tell you is that the hardest part is that they don’t know how long they’re going to be there,” said Will.
“Day after day after day without knowing,” he added, arguing the practice violates Canada’s Charter protections against indefinite and arbitrary detention as well as cruel and unusual treatment.
Hundreds in detention at any time in Canada
The CBSA was asked for its position on Monday’s challenge, but has yet to respond.
However, according to the agency, there are some 450 to 500 people in detention in Canada under the Immigration and Refugee Protection Act at any given time. Since 2000, a total of 15 have died in custody, according to the advocacy group End Immigration Detention Network.
EIDN representative Nisha Toomey points to clear limits to the practice in the European Union and in the United States. In the EU, detention is capped at six months with the possibility of extending to 18 months in certain cases. In the U.S., the period of presumptive release is six months.
In Canada, a migrant can be detained if the CBSA believes them to be inadmissible under the Immigration and Refugee Protection Act, poses a danger to the public, is unlikely to appear for a hearing or removal date or cannot prove his or her identity to the officer’s satisfaction.
That last criterion in particular, critics argue, can leave the majority of non-criminal detainees in detention for an unlimited period of time, a practice that Canada has come under fire for by the United Nations human rights committee.
It’s a problem Kimora Adetunji, who is married to a current detainee being held in Toronto, knows all too well.
Adetunji herself says she was detained with her family upon arriving to Canada in 1992, at age eight.
“I remember the shame … Afterwards we weren’t allowed to talk about it, there was so much stigma,” she said. But after 25 years in Canada, she says she was shocked to learn the practice is still in place.
‘Every 30 days, it’s the same answer’
Like all detainees, Adetunji’s husband undergoes a review by the Immigration and Refugee Board every month.
“Every 30 days, it’s the same answer,” she said. “It’s almost as if it’s a circus, that we’re going there just so that they can say they offered him the opportunity to have a detention review.”
After the challenge is heard Monday, Will says the case will likely be taken under reserve, with a judgement likely months away.
But he’s hopeful.
Last month, the Ontario Superior Court freed one of Will’s clients who was one of Canada’s longest-serving detainees. Kashif Ali, a West African man who had no documentation and amassed a string of convictions dating back to the 90s, found himself in legal limbo in detention for some seven years.
In his ruling, Justice Ian Nordheimer called Ali’s ordeal “unacceptable,” rejecting the notion that his convictions were grounds for ongoing detention.
‘An opportunity for us to change’
For its part, the federal government has said it’s committed to making detention a last resort and has launched consultations toward the development of a national immigration detention framework.
And last August, amid mounting pressure to respond to concerns about the practice, Public Safety Minister Ralph Goodale announced $138 million towards improving Canada’s immigration detention centres, which have come under fire for allegedly being understaffed and subjecting those inside to significant periods under lock-down.
Will says that was “certainly not a welcome response.”
“When you have the problem of people being detained for too long and under arbitrary and cruel conditions, to spend more money so that you expand your capacity to detain people isn’t exactly a solution to the problem,” he said.
Adetunji agrees, saying that until the practice ends, her life and that of her husband remain in limbo.
“It doesn’t fit with who we are as Canadians. There is an opportunity for us to change it and treat people better.”
By Shanifa Nasser
Source: cbc.ca
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