TORONTO – Canada’s system of detaining some foreigners who cannot be readily deported may not be perfect but it is fair and constitutional, a government lawyer argued on Tuesday.
As such, he argued, it would be a mistake to throw out a law critics insist victimizes detainees because it is procedurally unfair and can lead to indefinite detention.
What’s simply not true, Bernard Assan told Federal Court, is that anyone is locked up and left to rot.
“I’m not disputing that the interests at stake are important (but) if procedural rights are trampled on in particular circumstances, the law provides them avenues,” Assan said. “They’re allowed to make their case.”
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Jamaican Alvin Brown, who was detained for five years before being deported last year, is challenging the constitutionality of certain provisions in Canada’s immigration laws. The father of six and his supporters argue that foreigners who cannot be deported for various reasons are subjected to cruel and unusual punishment in that they may spend years behind bars never knowing when they might be released.
In challenging the constitutionality of the system, Brown’s lawyers supported by those from the End Immigration Detention Network argued the process is stacked against detainees.
Detention reviews that must take place every 30 days amount to rubber stamps in which the onus shift to detainees to provide “clear and compelling” reasons why previous decisions to detain them should be set aside, they said.
Brown’s lengthy detention, Assan told Judge Simon Fothergill, resulted from Jamaica’s refusal to provide travel documents and the fact that he had convictions for weapons offences. Assan noted a Superior Court justice in December rejected Brown’s claim for damages arising out alleged violations of his charter rights.
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“You can have an unconstitutional regime that occasionally produces a constitutional result,” Fothergill interjected.
Each case is different and detainees have numerous ways to seek redress if they believe the circumstances of their detentions are unreasonable, the lawyer countered.
“I’m not going to say it’s a perfect system (but) context is very important, facts are very important,” Assan said.
Assan took issue with affidavits from four current and former detainees in which they outlined complaints against their treatment. The decision to detain them had nothing to do with infirmities in the scheme, Assan said.
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In one of the cases, he said, a person already deported once had come back to Canada on forged documents and then unsuccessfully challenged his second removal in court. He was detained as a flight risk, but clearly knew to exercise his rights, the lawyer said.
In a second case, a man claimed refugee status as a gay Nigerian when in fact he was not gay and had been living in the United States for 20 years. The man only came to Canada after being convicted in a car crash that killed a person, court heard. He was initially released on his own recognizance, but disappeared for five years.
Fothergill, who frequently challenged Assan’s arguments, said he would look at the four examples as “case studies.”
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Critics say it’s grossly unfair that many detainees end up in maximum-security prisons housed with hardened criminals when they may in fact have committed no crime. But Assan said it’s usually those with a history of violence or suicidal tendencies who are moved to the prison system. The conditions of their detention, he said, are out of the Immigration Division’s hands.
Brown’s lawyer, Jared Will, argued on Monday that lengthy indefinite detention is “contrary to the principles of fundamental justice.” He noted the European Union has a “hard cap” of 18 months on such detentions but Assan said individual countries in Europe can get around the cap if they have substantive reasons to do so.
Fothergill was expected to reserve his judgment for several months.
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