Federal Court hearing landmark challenge on indefinite immigration detention

A challenge to Canada's immigration laws gets underway in Federal Court in Toronto today, with lawyers for a man held for years before his deportation to Jamaica arguing that indefinite immigration detention violated his constitutional rights and those of hundreds of others.

Alvin Brown, 40, spent five years in maximum-security provincial jails before he was deported last fall.

His lawyers, including Jared Will, launched the landmark constitutional challenge two years ago, calling on the government to justify the practice of indefinite immigration detention.

Monday's case is believed to be the first-ever charter challenge to the practice, according to Will.

Brown came to Canada as a child with his family and lived here for more than three decades before being removed last fall for a series of criminal convictions. Will said Brown had also been battling addiction and mental health issues. 

Brown had first languished behind bars because of a series of delays by the Canada Border Services Agency (CBSA) and Jamaican authorities in processing his deportation.

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He was still in custody when his lawyers first filed the challenge, which is proceeding despite his deportation.

"We talk to people in this situation and the first thing they tell you is that the hardest part is that they don't know how long they're going to be there — day after day after day without knowing," said Will.

He argues the practice violates Canada's Charter of Rights and Freedom protections against indefinite and arbitrary detention, as well as cruel and unusual treatment.

Hundreds in detention in Canada

The CBSA was asked for its position on Monday's challenge, but has yet to respond.

However, according to the agency, there are some 450 to 500 people in detention in Canada under the Immigration and Refugee Protection Act at any given time. Since 2000, a total of 15 have died in custody, according to the advocacy group End Immigration Detention Network (EIDN).

EIDN representative Nisha Toomey points to clear limits to the practice in the European Union and in the United States. In the EU, detention is capped at six months with the possibility of extending to 18 months in certain cases. In the U.S., the period of presumptive release is six months, subject to exceptions, such as for dangerous individuals.

The United Kingdom, New Zealand and Australia do not have prescribed maximum lengths for immigration detention, Ministry of Public Safety spokesperson Scott Bardsley said, adding that the office could not comment further since the case is before the courts.

In Canada, a person can be detained if the CBSA believes that person is inadmissible under the Immigration and Refugee Protection Act, poses a danger to the public, is unlikely to appear for a hearing or removal date, or cannot prove his or her identity to the officer's satisfaction.

It doesn't fit with who we are as Canadians.- Kimora Adetunji, former detainee

That last criterion in particular, critics argue, can leave the majority of non-criminal detainees in detention for an unlimited period of time, a practice that Canada has come under fire for by the United Nations human rights committee.

It's a problem Kimora Adetunji, who is married to a current detainee being held in Toronto, knows all too well.

Adetunji said she was detained at age eight with her family after they arrived in Canada in 1992.

"I remember the shame … Afterwards we weren't allowed to talk about it, there was so much stigma," she said. But after 25 years in Canada, she says, she was shocked to learn the practice is still in place.

'Every 30 days, it's the same answer'

Like all detainees, Adetunji's husband undergoes a review by the Immigration and Refugee Board every month.

"Every 30 days, it's the same answer," she said. "It's almost as if it's a circus, that we're going there just so that they can say they offered him the opportunity to have a detention review."

After the challenge is heard Monday, Will said, the case will likely be taken under reserve, with a judgment possibly months away.

But he's hopeful.

Last month, the Ontario Superior Court freed one of Will's clients who was one of Canada's longest-serving detainees.

Kashif Ali, a West African man who had no documentation and had amassed a string of convictions dating back to the 1990s, found himself in legal limbo in detention for some seven years. 

In his ruling, Justice Ian Nordheimer called Ali's ordeal "unacceptable," rejecting the notion that his convictions were grounds for ongoing detention.

'An opportunity for us to change'

For its part, the federal government has said it's committed to making detention a last resort, and has launched consultations with the goal of developing a national immigration detention framework. 

Last August, amid mounting pressure to respond to concerns about the practice, Public Safety Minister Ralph Goodale announced $138 million would go into improving Canada's immigration detention centres, which have been criticized for being understaffed and subjecting detainees to significant periods under lockdown. 

Will said that was "certainly not a welcome response."

"When you have the problem of people being detained for too long and under arbitrary and cruel conditions, to spend more money so that you expand your capacity to detain people isn't exactly a solution to the problem," he said.

Adetunji said that until the practice ends, her life and that of her husband remain in limbo.

"It doesn't fit with who we are as Canadians. There is an opportunity for us to change it and treat people better."