Two men spent weeks “unlawfully” detained in a Toronto jail after criminal court staff may have failed to notify the jail they should be released, according to their lawyer who argues the men were “functionally kidnapped” by the province.

Both men had been released from criminal custody — one on bail, one after all his charges were withdrawn — and should have immediately been transferred into the custody of the Canada Border Services Agency since they also faced deportation proceedings.

That transfer wasn’t done until weeks later, their lawyer says. In the meantime, the men were left in limbo at the Toronto South Detention Centre without the opportunity to argue for release through an immigration detention review hearing that should have occurred within 48 hours of the transfer.

It took the intervention of the men’s criminal and immigration lawyers to make the transfer happen.

“There was obviously some kind of communications breakdown and it’s leading to people being unlawfully detained,” said lawyer Kevin Wiener, who is representing both men in their immigration proceedings and in small claims lawsuits against the province.

He says that when the criminal case ended, the province had no authority to keep the men in jail — and failed in their duty to notify the border agency.

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One of the two men, Dwayne Powell, was arrested on Oct. 2 and charged with minor fraud-related charges. He was formally arrested by border services in jail the next day, due to an outstanding immigration arrest warrant.

He was granted bail on the criminal charges at the Brampton courthouse on Oct. 23 then returned to jail. He did not realize his case had not been transferred and that immigration detention reviews should be automatically done within 48 hours, Wiener said.

Powell began looking for a lawyer and met Wiener a month later, on Nov. 22. He had his first detention review hearing on Nov. 27 and was eventually released by the Immigration and Refugee Board on Dec. 11.

“(Powell) didn’t realize anything had gone wrong,” Wiener said.

But Wiener said he immediately knew what had happened because something similar had just happened to another client of his, Andre Dean.

Dean is now suing the province in small claims court for false imprisonment, negligence and breach of his charter rights. (Wiener said small claims court lawsuits proceed faster than civil court matters, though damages in small claims court matters are capped at $25,000 which is what Dean is seeking).

Dean was arrested on robbery-related charges in October 2016 and was in pretrial custody until his criminal charges were entirely withdrawn on Aug. 17, through plea agreements.

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He would have been free to go at the end of his criminal matters had he not been also in the custody of the CBSA. It took until Sept. 6 for him to be formally transferred into immigration detention, according to a statement of defence filed by the province Tuesday. The statement of defence does not explain the delay.

Dean is now at Maplehurst, a jail where many immigration detainees are held, facing deportation hearings. He has not been released by the Immigration and Refugee Board, though he is able to have mandated regular detention reviews.

In its statement of defence, the province denies falsely imprisoning Dean and says even if it had “the damages owed by Ontario would be nominal as he had suffered no injury.” The province argues there has been no violation of Dean’s charter rights, including the right not to be deprived of liberty, and that if there was, it was justified.

“Ontario acted at all times reasonably, in good faith, and with appropriate regard for the plaintiff’s charter rights,” the document states.

A spokesperson said the Ministry of the Attorney General would not comment further on the matters because they are subject to litigation. A spokesperson for the Ministry of Community Safety and Correctional Services said the matters fall under the Ministry of the Attorney General.

Wiener, who has also filed a notice of intent to sue on behalf of Powell, said that “by the government’s logic, you could tie someone up in your basement for three weeks and not owe them any money if they were also subject to an arrest warrant.”

After his criminal charges were withdrawn, “only the CBSA had authority to detain Mr. Dean, and only until the Immigration Division reviewed his detention,” Wiener said. “The provincial government unlawfully detained him for three weeks with no independent review. Mr. Dean’s current legal detention does not erase his damages from being functionally kidnapped by the government of Ontario.”

Wiener noted that even after the lawsuit had been filed, Dean was wrongly transported to the Guelph courthouse on Nov. 27, a week after his charges there had been withdrawn. That fact, he said, suggests a second communication breakdown between court staff and the jail.

Criminal charge-related releases are typically resolved prior to immigration detention reviews since the CBSA arrest does not come into effect until a criminal hold is over, Wiener said. But, he said, these two cases show that process can result in longer times in custody.

“The government needs to do the right thing for my clients and take immediate steps to make sure this never happens again,” he said.