Far from the watch of most Canadians, behind the razor wire and imposing concrete walls of the Lindsay superjail are some 100 long-term detainees held for breaking the country’s immigration laws.

They are either non-status foreign nationals or former permanent residents who lost their status due to criminal convictions, but have served their sentences and are in the queue, awaiting deportation.

Last year, almost 6,000 men and 1,746 women were detained by Canada Border Services Agency. Although most were held for 23 days on average, 58 had been held at least a year and some more than five years.

One of them was Toronto’s Abdurahman Ibrahim Hassan, originally from Somalia, who was held in Lindsay from June 2012 until his death three years later, after some 35 detention reviews by the Immigration Division tribunal in his failed bids to be freed.

His lengthy detention — and death — has sparked a debate over Canada’s immigration detention system, which involves a myriad of government jurisdictions in what critics call “a legal black hole,” with little transparency and accountability.

In 2014, taxpayers spent $57.3 million on immigration detention. Critics argue it should be capped at 90 days and other options be considered if a removal can’t happen within that time frame.

“Immigration detention has been far overused. It’s particularly problematic when it’s used on people with mental health issues,” said Josh Paterson of the British Columbia Civil Liberties Association. “Putting them with the criminal population for an extended period of time is an unjust departure from the standards of international human rights laws.”

A groundbreaking decision in October by the Ontario Court of Appeal gives advocates and long-term detainees a ray of hope by recognizing the shortcomings of the detention review system and granting detainees the right to challenge continued incarceration in provincial court. It ruled “the exceptional length” and “uncertain continued duration” of detention can be grounds for a constitutional challenge for release.

Lawyer Subodh Bharati, who has a number of clients who’ve been detained for over a year, said detainees — some with language barriers and no family here, and often arrested without personal documents — face hurdles in accessing lawyers, resources and support.

The longer a detainee is held, the more unlikely they would be released despite the law’s mandated detention review hearings at 48 hours, seven days and every 30 days after the initial detention.

“Decision makers simply follow the reasoning of previous detention hearings in what amounts to a rubber-stamping of earlier decisions to maintain detention,” said Bharati. “This is contrary to the principle behind monthly detention reviews which is to ensure detention is not arbitrary by re-evaluating the need for continued detention.”

Many detainees are not represented by lawyers at their subsequent detention reviews because they can’t afford the service.

“They don’t have the ability to pay lawyers and Legal Aid will usually give them one shot, two at most. If they are refused release, it’s over unless they can prove their circumstances have changed,” said Bharati.

An adjudicator orders detention if the person is deemed unlikely to appear for a hearing or removal, a danger to the public or inadmissible for security reasons, criminality or violating international human rights.

Lengthy detentions, CBSA officials say, are caused by difficulties in confirming a person’s identity and failure to obtain travel documents for their deportation, often because the detainee is unco-operative.

“CBSA officers will only detain an individual where doing so is necessary and proportional in all the circumstances,” said agency spokesperson Pierre Deveau.

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When someone is detained, he said, CBSA must complete a medical form which allows detainees to “self-identify” any medical or mental health issues. Those with serious mental health concerns are taken to provincial jails immediately for dedicated support, he noted.

While detention review is meant to assess if a detention is justified, critics say adjudicators rarely depart from previous decisions unless there are “clear and compelling reasons” to do so.

“The onus is reversed on the detainee to prove why he should be released,” said Ottawa lawyer Arghavan Gerami, a board member of the Refugee Lawyers Association.

Bharati’s client, Abdirahman Warssama, has been held in Lindsay for more than five years awaiting deportation to Somalia after being convicted of criminal offences for which he was sentenced to only one day in jail after credit for 87 days of pre-sentence custody.

The CBSA has acknowledged he is not a danger to the public, said Bharati, yet has held the 52-year-old, who suffers from post traumatic stress disorder, because he has refused to sign a paper required for removal to Somalia.

“The strong factor with respect to releasing Mr. Warssama vis-à-vis his length of detention, however, must be weighed against the other factors in the circumstances of the case,” said adjudicator Ron Stratigopoulos, in refusing his release in a recent detention review. “At this point, Mr. Warssama is causing the delay.”

Bharati is challenging the decision, arguing the lengthy detention of his client is unlawful because officials can’t force him to sign a “voluntary declaration” when he truly fears for his life if returned to Somalia, the troubled land he left 26 years ago.

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