September 27, 2017

Indefinite Detention of Immigration Detainees: Brown v. Canada (Citizenship and Immigration), 2017 FC 710

The recent federal court decision in Brown v. Canada (Citizenship and Immigration) found that the existing immigration detention system is constitutional despite flaws in the way that the system has been administered.  Alvin John Brown requested a judicial review of the decision given by the Immigration Division (ID) of the Immigration and Refugee Board (IRB). Brown spent five years in a maximum-security jail before being deported to Jamaica, his country of birth, on 7 September 2016.

Background

Brown became a permanent resident of Canada in June 1984. Between 1990 and 2010, he was convicted for 17 offences, including drug trafficking, robbery, uttering threats, and assault with a weapon. He subsequently failed to comply with court orders and his release conditions. As a result, he was found to be criminally inadmissible and his permanent residency was revoked. In September 2011, the CBSA detained him to commence removal proceedings. Brown was detained for 5 years and the ID allowed his continued detention as it found that Brown was a danger to the public and was unlikely to appear for his removal to Jamaica. The ID determined that his continued detention did not violate the Canadian Charter of Rights and Freedoms (Charter).[1]

The CBSA requested that the Jamaican consulate issue a travel document for Brown in February 2012 but it was not issued until September 2016, following which Brown was removed from Canada. Brown was deported the same day that his application for habeas corpus was heard by Justice Alfred O’Marra of the Ontario Superior Court of Justice. Justice O’Marra decided that Brown’s continued detention did not violate his rights under the Charter.[2]

Brown v Canada (Citizenship and Immigration), 2017 FC 710

In the present case, Brown brought a constitutional challenge to the immigration detention system, asserting that sections 57 and 58 of the Immigration and Refugee Protection Act (IRPA) and sections 244 to 248 of the Immigration and Refugee Protection Regulations (Regulations) violate sections 7 and 9 of the Charter. Furthermore, he argued that indefinite detention and the conditions of imprisonment violate section 12 of the Charter. Ultimately, Justice Simon Fothergill of the Federal Court dismissed the judicial review.

The End Immigration Detention Network (EIDN) was granted third-party public interest standing in this case. Brown and the EIDN argued that immigration detention fails to comply with the constitutional criteria provided by the Supreme Court of Canada in Charkaoui in the following four aspects:

(a) it imposes a “reverse onus” on a detainee to justify release, rather than placing the onus on the Minister to justify continued detention;

(b) the detainee is not given a reasonable opportunity to know the case to be met or to respond to that case;

(c) the ID has no power to control conditions of detention; and

(d) the ID has no obligation to fashion alternatives to detention.[3]

Fothergill J. held that the legislative scheme for detention does not violate the right to life, liberty, and security under section 7 and the right not to be arbitrarily detained or imprisoned under section 9 of the Charter, addressing each issue raised by Brown and the EIDN.[4]

First, Fothergill J. affirmed that the onus is on the Minister of PSEP to demonstrate that detention or continued detention are justified and stated, “If the ID does not respect these standards in practice, this is a problem of maladministration, not an indication that the statutory scheme is itself unconstitutional.”[5] Second, Fothergill J. found that the statutory scheme is constitutional despite the shortcomings of the detention review processes. He again stated that issues with the timeliness and quality of pre-hearing disclosures were due to maladministration, as opposed to statutory unconstitutionality.

Third, Fothergill J. determined that the ID’s lack of jurisdiction over the conditions and location of detention does not violate the Charter. An ID member is mandated to examine alternatives to, and less constraining forms of, detention before determining whether an individual should be released. He further stated that processes are available to allow detainees to challenge the conditions and location of their detention. Fourth, Fothergill J. found that the lack of a maximum time limit for detention does not violate sections 7 and 9 of the Charter, as the existing detention review mechanisms are adequate. The ID has a positive obligation to assess alternatives to detention, which is engaged once the Minister of PSEP has established a prima facie case for continued detention.

Finally, Fothergill J. held that the statutory scheme for immigration detention does not constitute cruel and unusual treatment or punishment under section 12 of the Charter. Fothergill J. found that the current scheme provides an adequate mechanism to review detention, secure release, and modify any release conditions. Furthermore, Fothergill J. stated that there was insufficient evidence to find that immigration detention constitutes cruel and unusual treatment or punishment despite the numerous studies and witnesses provided by Brown and his counsel demonstrating the detrimental psychological effects of indefinite detention on detainees.

Conclusion

Fothergill J. stated, “Properly interpreted and applied, these provisions of the IRPA and the Regulations comply with the Charter.”[6] Although the statutory scheme for immigration detention was held to be constitutional, the Brown decision is disappointing for many advocates of immigration detention reform as the fact that the law can be misapplied to detainees is concerning. Detainees continue to be held in provincial correctional facilities where they are subjected to poor living conditions, lockdowns, solitary confinement, and maximum-security constraints, like Brown was before being deported. To protect detainees in vulnerable positions, measures must be undertaken to ensure that the statutory scheme for immigration detention is either properly implemented or amended to compensate for their poor administration.

Interestingly, Fothergill J. certified a question for appeal asking whether the Charter requires a maximum amount of time that an individual can be detained for immigration purposes.[7] Advocates are hopeful that the higher court will impose a reasonable limit on the time period that an individual can be detained for immigration purposes, following which he or she must be released.

For more information on Federal Court Applications and Appeals, please click here.

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