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Page 10 June 12, 2017 • Law Times www.lawtimesnews.com Immigration detention under fire BY GABRIELLE GIRODAY Law Times L awyers say a recent Fed- eral Court of Canada case shows the need for Canada to overhaul the way the country deals with the detention of immigrants. In Alvin Brown v. The Min- ister of Citizenship and Im- migration, lawyers for Alvin Brown argued his detention vio- lated the Canadian Charter of Rights and Freedoms. According to a submission by his lawyers, Brown was deported in 2016, after five years of being in immigration detention. In May, there was a two-day hearing in Brown's case, where lawyers argued that the current immigration detention regime violates ss. 7, 9 and 12 of the Charter. "[I]t puts the question of the constitutionality of indefinite detention squarely before the court," says Jared Will, principal of Jared Will & Associates, who acted for Brown with Jean Marie Vecina. "It also asks the question of if you're holding somebody for im- migration purposes but it's clear that the immigration purposes are futile, can you continue to hold them? In other words, is there sufficient protection against arbitrary detention?" According to a submission to the court, Brown — a citizen of Jamaica — had come to Canada when he was seven years old, be- fore becoming a permanent resi- dent the following year. In 2005, he was ordered to be deported for serious criminal- ity and lost his permanent resi- dent status and was detained by the Canadian Border Services Agency in 2011. He was in prov- incial maximum-security jails for five years while there were efforts to get him a travel docu- ment to return to Jamaica, even though his lawyers say he had co-operated with the process. "Mr. Brown's detention and its indeterminate nature were prejudicial not only to his liber- ty interest, but also to his mental health and security of the per- son," said a submission to the court. Karin Baqi, a staff lawyer with the South Asian Legal Clin- ic of Ontario, says, "There seems to be this situation happening in Canada where there [are] a number of people that have been detained for many years without any recourse." Baqi was co-retained to rep- resent the End Immigration De- tention Network, a third party at the proceeding, with co-counsel Swathi Sekhar. EIDN is a grassroots coali- tion of past and present detain- ees and their families, as well as organizations and allies, and it describes itself as "in support of migrants indefinitely impris- oned without charges or trial." "Canada is one of the few western countries without a time limit on detentions," said a press release by EIDN in refer- ence to the case. "Detainees, advocates, and the United Nations have criti- cized the lack of fair judicial oversight in the federal system. EIDN is asking the court to in- struct the federal government to create legislative reform to end indefinite detention." Baqi says immigration de- tention is legally not meant to be punitive but to be preventive. "Yet, it seems like so many things around [detention] re- semble punishment, and that's a problem," she says. Baqi says people are held in- definitely and they don't know when they'll be out, or removed or released from Canada. That uncertainty leads to stress, she says. "They're often held in max- imum-security provincial jails even though they have not ac- tually committed a crime," she says, noting others are held in immigration detention centres. At particular issue are long- term cases where people are held with no end in sight, like in cases where a person may not have identification such as a passport. "We are saying there need to be some protections and some measures to control that," she says. "So, what we've been asking for — what Alvin Brown and EIDN have been asking for — is called the presumptive limit, so that would be a time limit that people can be held in immigra- tion custody." Baqi says the argument is that if after that time limit expires, if a person is not removed or de- ported, the person could be re- leased. "That's where the interna- tional piece comes in because many countries — pretty much the whole [European Union] — has a presumptive time limit, recognizing that because im- migration detention is not sup- posed to be punitive, it's admin- istrative, the government has to do its due diligence in getting those travel documents, and if they can't, then the person ought to be released, because it's their fundamental liberty interest at stake," she says. Baqi says Justice Simon Fothergill reserved his decision after the hearing. The Department of Justice Canada pointed to the CBSA as the contact for the matter. The CBSA did not provide comment specifically on the Brown matter, stating it was cur- rently before the courts. However, the CBSA pointed to the National Immigration Detention Framework, which was announced last August by federal Minister of Public Safety and Emergency Preparedness Ralph Goodale. "The new framework will create a better, fairer immigra- tion detention system for the hu- mane and dignified treatment of individuals while uphold- ing public safety," said an email statement from the CBSA. LT FOCUS Karin Baqi says the conditions under which people are being held in immigration detention are often very punitive. 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