September 1, 2017
Summer of Scrutiny for Canada’s Immigration Detention System
Canada’s immigration detention system has come under intense scrutiny this summer. Two decisions—one reviewing the system and its legal requirements, and the other questioning the relationship between the Immigration Division (ID) and CBSA—have led the IRB to initiate an audit of long-term detention practices.
On July 25, the Honourable Mr. Justice Fothergill of the Federal Court released his decision in Brown v Canada (Citizenship and Immigration), 2017 FC 710, the first ever Charter challenge of the immigration detention system.
Fothergill J. found that despite possible flaws in its administration, the immigration detention system is constitutional. He took the opportunity to set out the minimum requirements of lawful detention for immigration purposes under the IRPA and the IRPR, which can be found at paragraph 159 of the decision. (Aussi disponible en français)
While Fothergill J. found that the system complied with the Charter, Ontario Superior Court Justice Edward Morgan compared one immigration detainee’s experience in Canada’s immigration detention system to that of the protagonist of Franz Kafka’s The Trial.
The Ontario case, Scotland v. Canada (Attorney General), 2017 ONSC 4850, concerned a habeas corpus application by Ricardo Scotland, a refugee claimant who spent a total of 17 months in a maximum security detention facility. He had been held in custody without release since October 2016.
Scotland was initially detained after being charged with possession of a firearm, narcotics, and stolen property. The charges were dropped and he was released but on four separate occasions was found by the ID to have breached his release conditions.
In Morgan J.’s view, Scotland never actually breached his conditions and was the victim of numerous errors by CBSA and the ID. For example, an ID Member found that Scotland breached his release conditions by failing to alert CBSA of a “change of address” when he was put in pre-trial custody. Morgan J. rhetorically asked whether any rational person would consider this a “change of address”.
The “cumulative effect” of Scotland’s “faux breaches” led ID Members to consider him a flight risk. Morgan J. described this situation as a Catch-22, where the more mistakes CBSA officers and ID decision-makers made, the harder it was for Mr. Scotland to challenge them.
Justice Morgan gave a stark rebuke to members of the ID. He found that ID adjudicators had improperly relied on CBSA’s assertions that Mr. Scotland had breached his release conditions rather than determining the issue for themselves. This violated a principle of fundamental justice “that the statutorily designated decision-maker must actually make the decision in issue”. (Par. 61) The ID must decide whether conditions have been breached, not CBSA.
Morgan J. ordered Scotland’s release because “[a]s with Kafka’s Joseph K., no one knows why he was detained.” Even when the Attorney General conceded that there was no reason for Scotland’s continued detention, an ID member refused to release him. “The CBSA and ID have engaged in a form of arbitrary decision making which effectively combines the right under section 9 of the Charter not to be arbitrarily detained with the right under section 7 not to be detained absent moral culpability. The arbitrariness inherent in Mr. Scotland’s detention is patent to all who take an objective view”. (Par. 67)
On August 17, the IRB announced that it will carry out an audit of long-term detention reviews. In its statement, the IRB referenced the Scotland decision, stating that it “provides further impetus” for the audit. The audit will be completed in the Fall.