The entire system by which Canada indefinitely jails the people it wishes to deport is unconstitutional and should be dramatically redesigned, Federal Court heard on Monday.

Lawyers representing former immigration detainee Alvin Brown, who was deported to Jamaica last year after spending more than five years in maximum-security jail awaiting his removal, argued that Canada’s immigration detention system violates multiple sections of the Charter of Rights and Freedoms, namely the rights not to be indefinitely and arbitrarily detained and to be protected from cruel and unusual treatment.

Not only does Canada’s current system not protect those rights, lawyer Jared Will told Justice Simon Fothergill, it “sanctions” their violation. Maintaining the status quo is “unjustifiable” and unconstitutional, Will said.

“The more complicated question is how to fix it.”

Canada’s border police agency detains thousands of non-citizens every year if they have been deemed inadmissible to the country and classified as a danger to the public because of past criminal convictions, or unlikely to show up for their deportation. The average length of detention is about three weeks, but many cases drag on for months or years. One common problem is detainees who lack documentation to prove their citizenship, so their home country refuses to take them back. Although the detainees have not been charged with a crime, many are sent to maximum-security provincial jails, where they are treated the same as those serving criminal sentences or awaiting trial.

A Star investigation this year into immigration detention in Canada found a system in which hundreds of unwanted immigrants were languishing indefinitely in conditions meant for a criminal population. The Star found that detainees are also poorly served by the quasi-judicial Immigration and Refugee Board, which reviews their detentions.

Last month, Ontario Superior Court ordered the immediate release of Kashif Ali, a 51-year-old West African man, profiled by the Star, who spent more than seven years in maximum-security jail because the government could not deport him.

Calling Ali’s situation “unacceptable,” Justice Ian Nordheimer roundly criticized the government, saying it could not justify indefinite detention.

Will, who also represented Ali, cited Nordheimer’s decision Monday as he tried to persuade Fothergill to declare Canada’s laws governing immigration detention unconstitutional and to impose a six-month limit on detention for immigration purposes.

In a court room packed with supporters of the End Immigration Detention Network, a coalition of advocacy organizations that was granted third-party standing at the hearing, Will and his colleague Jean-Marie Vecina outlined a litany of problems with the immigration detention regime. Among them:

The monthly detention reviews are procedurally unfair, offer insufficient protection for detainees’ rights and amount to little more than a rubber stamp.

There is a “legislative vacuum” regarding where detainees can be held, granting Canada’s border police agency wide latitude and unchecked discretion to jail detainees wherever they like. (“They can put one person in a five-star hotel and the other person in a maximum-security jail,” Will said.)

The lack of a defined maximum length of detention — as is currently in place in other countries and has been recommended by the United Nations — permits indefinite detention even when there is no reasonable prospect of removal.

In calling for a six-month limit, Will pointed to countries that already have such a prescribed deadline in place, including those in the European Union, which affords an extension to hold someone in immigration detention for up to 18 months, at which point they must be released. Some countries have set much shorter limits, while courts in the U.S. have ruled that if the government can’t prove deportation is “reasonably foreseeable” after six months, the detainee should be released.

“There is nothing novel about this,” Will said.

The government itself this year announced it was “exploring” policy changes to reduce the length of immigration detention, expand alternatives to detention and limit the use of criminal jails, but it has yet to make any meaningful changes.

Will suggested that if Fothergill agrees the current system is unconstitutional, he could use either a “scalpel or a sledgehammer” to fix it. Will argued the scalpel was better because if Fothergill were to dismantle the current system and order the government to build a new one, thousands of people would continue to be detained under unconstitutional laws while the government wrote new ones.

Loading... Loading... Loading... Loading... Loading... Loading...

Instead, he argued that in addition to imposing a six-month limit on immigration detention, the court could make specific changes to existing laws, such as ensuring the burden is on the government to justify continued detention, empowering Immigration and Refugee Board members to order release if a detention has become indefinite, and giving the board some say over the location of detention.