The legitimacy of Canada Border Services Agency’s decision to send an immigration detainee to maximum-security jail — rather than a less-restrictive Immigration Holding Centre — was called into question Wednesday as the detainee’s lawyer challenged immigration officials to explain how the decision was made.

Among the factors border agency investigator Dale Lewis listed as grounds to place Ebrahim Toure, who has never been charged or convicted of a crime in Canada, in a maximum-security provincial jail was the fact that he was a “fugitive of justice” because there was an outstanding U.S. warrant for his arrest.

“He’s wanted on a warrant,” Lewis said under cross-examination, adding that this was the main reason Toure has been classified as a “high risk” detainee and therefore ineligible to be placed in the Immigration Holding Centre, a minimum-security facility intended specifically for immigration detainees.

“Is this the warrant?” asked Jared Will, Toure’s lawyer.

“Yes,” Lewis said.

Will asked Lewis to turn the warrant over and read the back.

“It says it expires May 17, 2006.”

The warrant is regularly referenced at Toure’s monthly detention reviews at the Immigration and Refugee Board. Only on Wednesday was it revealed to be expired.

A 46-year-old failed refugee claimant from the Gambia, Toure has spent more than four-and-a-half years in a maximum-security jail because Canada has been has been unable to deport him. He is arguing in Superior Court that his ongoing and indefinite detention violates the Charter of Rights and Freedoms.

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The use of provincial jails to house federal immigration detainees — who are not charged with any crime, but end up treated the same as sentenced criminals and those awaiting trial — is one of the most controversial aspects of Canada’s immigration detention system. The Liberal government has admitted it is a problem and committed to “sharply” reducing the use of provincial jails for immigration detainees, who are detained not as a form of punishment, but solely to ensure deportation can be carried out.

The average length of immigration detention in Canada is just a few weeks, but there is no limit on how long someone can be detained and some cases — like Toure’s — drag on for months or years. Most long-term detainees, the Star has found, are held in jail.

The federal government runs three less-restrictive facilities dedicated to immigration detention — one each in Toronto, Montreal and Vancouver. They are nowhere near full, but for a variety of reasons the government says they are inappropriate for “high risk” detainees, which, according to the border agency’s internal policies, are detainees with “serious criminality,” a record of violent behaviour or those who pose a “significant” escape risk. Detainees with “minor criminality” — typically crimes of a non-violent nature — are to be classified as “medium risk,” according to the policy, and should therefore be eligible for the Immigration Holding Centre.

Earlier this year the border agency announced that all three immigration detention facilities will be upgraded to eventually have the “capacity” to house “high risk” detainees. Toronto’s Immigration Holding Centre will be ready to house “high risk” detainees next July, the government said.

In addition to the expired warrant, Toure’s “high risk” designation, according to the border agency, is due to his “criminality” in the U.S., which consists of a 12-year-old conviction for selling pirated CDs and DVDs in Atlanta. He pleaded guilty to the offence and received two years probation, but no jail time.

The arrest warrant was subsequently issued the following year after Toure was found to have breached his probation by leaving the state when he was stopped by police at a Houston airport with nearly $50,000 in cash. Toure co-operated with police at the time and was not charged with any offence.

The border agency only became aware of the U.S. warrant in June 2015, at which point Toure, who is being detained solely as a flight risk and is not considered a danger to the public, had already been held in jail for more than two years. Will asked Lewis on Wednesday if he could explain how it was decided that Toure would be sent to maximum-security jail back in February 2013. Lewis said another border agency officer made the decision and he could not explain it.

While the decision to detain someone for immigration purposes is reviewed every 30 days by the refugee board, the location of their detention — whether in a provincial jail or an immigration detention centre — is made only by the border agency and is not subject to any external review.

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The Star has previously reported on the inconsistent and sloppy record keeping by border agency officers with regard to the forms that determine the place of detention. Border agency officials have admitted there were problems with the initial implementation of the system, which has subsequently been reviewed and undergone improvements.

Toure’s mental health was also discussed Wednesday, with psychiatrist Dr. Donald Payne, who examined Toure at the request of his lawyers, testifying that Toure suffers from “major problems” with his mental and psychiatric health, including visual and auditory hallucinations. Toure, who was profiled earlier this year as part of a Star investigation into immigration detention, said he did not have any mental health problems prior to being detained.

The case is scheduled to conclude Thursday, at which time Justice Alfred O’Marra will take an indefinite number of days or weeks to decide whether or not Toure should be released.

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