Canada Can Hold Immigration Detainees Indefinitely, Federal Appeals Court Rules

Ottawa can hold immigration detainees indefinitely during immigration cases without infringing on the Canadian Charter of Rights and Freedoms, the Federal Court of Appeal ruled earlier this week.

The rule follows the case of schizophrenic Alvin Brown, who was stripped of his permanent residency in 2011 after a series of criminal convictions on drugs and weapons charges and considered a flight risk and danger to the public.

He was detained and it took about five years before Brown’s immigration case resulted in him being deported to Jamaica.

There are strict limits on the number of times people charged with crimes in Canada can be detained while awaiting criminal trials. Brown’s attorney argued during his case a similar limit should also apply to immigration cases.

They asserted six months is a reasonable maximum amount of time in detention for such cases. The End Immigration Detention Network, which stepped in on the case, called for a maximum of three months.

That advocacy group declares on its website that the United Nations recommends a tentative period within which immigration detainees must be released or cleared, failing which they are to be released.

“In the United States and the United Kingdom that period is Ninety (90) days but Canada doesn’t have a tentative period,” write the group on its website. “We are calling for more than a tentative period, we are calling for a ninety (90) day limit on detentions. If someone can not be deported, they must be released.”

The Federal Appeal Court, though, rejected that argument. In its decision, it noted the reasons which led to the establishment of those rules are markedly different from those surrounding immigration cases.

“Together, the federal and provincial authorities have full control over almost every aspect of the criminal justice system and the variables that affect delays,” wrote Justice Donald J. Rennie for the panel of three judges.

Among the things Canada and the provincial government control in terms of the criminal justice system are the appointments of judges and the construction of courtrooms, he said.

“On the contrary, while removal is one of the objectives of detention, Ottawa does not have complete control over its realization,” declared the judge. “Removal may be frustrated by political disturbance in the receiving state.

Removal may be delayed by a lack of evidence as to identity…. Travel documents have to be obtained from a great number of countries, some of which may not be in a haste to have a particular national returned.”

Under Canadian law, people can be detained indefinitely in immigration cases without infringing on the Charter of Rights and Freedom provided there are reasons for the detention and the delay in deportation and regular reviews of the situation, the judge noted.

During those detention reviews, it is up to the Minister of public safety to show both the grounds for the detention and that it is justified on a case-by-case basis.