TORONTO — An unusual challenge to the detention of a man held without charge in immigration custody for five years has been put on hold to see if his deportation to Jamaica goes through next week.
If Jamaica fails to issue Alvin Brown a travel document as has happened before, the “habeas corpus” hearing in Ontario Superior Court is expected to resume within hours of his scheduled departure on the morning of Sept. 7.
The hearing before Justice Alfred O’Marra – regardless of whether Brown is put on a plane – will see his lawyers press for damages of $1,500 for each day of his lengthy incarceration, if the court finds any of it to have been unlawful.
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The federal government maintains the release hearing cannot give rise to damages and Brown would need to sue in civil court if he believes he deserves compensation. Brown’s law counsel disagree.
“It’s not in the public’s interest to have this go through the courts twice with basically the same evidence,” immigration consultant MacDonald Scott, one of Brown’s legal team, said on Thursday.
Brown, 40, a father of six who arrived in Canada 33 years ago and became a permanent resident a year later, was deemed inadmissible after 17 convictions, most drug and weapons related. He was released from criminal custody in early 2011 but border agents detained him months later for violating release conditions.
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Since then, Jamaica has refused to issue him travel papers, precluding his deportation and he has spent the past five years in prison branded a flight risk and danger to the public.
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The federal government maintains the lengthy incarceration is Brown’s fault because he has not co-operated in obtaining the needed paperwork, but his lawyers say the evidence shows he did everything he could, and Canada Border Services Agency is responsible for the delay.
Brown is one of many immigrants who activists say are being held under what amounts to indefinite detention in violation of international law. In an effort to force changes, he has also filed an application in Federal Court that seeks to argue a decision to keep him behind bars in January 2015 was unconstitutional. Among other things, he argues his prolonged detention amounted to cruel and unusual punishment.
The group, End Immigration Detention Network, is seeking to intervene in the judicial review, which is unlikely to be heard before March.
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At Tuesday’s start of the Superior Court hearing – made possible by an Ontario Appeal Court ruling last year that provincial courts have jurisdiction to hear detention cases arising out of immigration laws – Brown testified he badly wants out of prison, even if it means ending up in Jamaica where he knows no one.
“I feel good about it,” Brown, who suffers from mental-health problems, told court. “I’ll be free.”
Immigration detentions are by law reviewed every 30 days. However, critics argue the hearings all too often amount to a rubber stamp, and too many foreigners find themselves for long periods in prison limbo – unable to be released and unable to be deported.
The Jamaican consulate did not respond to a request for comment.
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