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It is up to the IRB to make the assessment of each case, with the availability of court appeals as oversight.

“The availability and effectiveness of these review mechanisms are sufficient to render the statutory scheme constitutional,” Fothergill wrote.

“If the (IRB) does not respect these standards in practice, this is a problem of maladministration, not an indication that the statutory scheme is itself unconstitutional.”

Fothergill also allowed for a future hearing to consider whether a cap should be placed on the length of time someone can remain in immigration detention before release is mandatory.

The case involves Alvin Brown who came to Canada from Jamaica as a child but never became a Canadian. After a drug trafficking conviction in 2000, he was deemed inadmissible to Canada. He fought deportation through the courts. In 2010 he was convicted of robbery and uttering death threats and Canada Border Services Agency arrested him in 2011 pending deportation.

The question of when detention for immigration purposes is no longer reasonable does not have a single, simple answer

It took five years for Jamaican authorities to accept Brown’s return, during which time he was held in jail. Although he was deported before his case came to Federal Court, an activist group called End Immigration Detention Network (EIDN) joined his challenge and the court opted to hear it regardless.

The detention issue has raised concern for years.

In 2016, 5,886 people were detained for immigration purposes: 1,086 in Quebec; 3,145 in Ontario; 1,487 in the Pacific region; 257 in Prairies; and 30 in Atlantic Canada, court heard. The most common reason for detention was the person was unlikely to appear for an examination, an admissibility hearing or removal. Only 362 of those detained were considered a danger to the public.