Charter

Rectifying the Wrongs of Indefinite Immigration Detention in Canada

Posted on by Tal Schreier

by Natasha Anzik and Norman Yallen

After being continually detained for seven years, Kashif Ali was finally released earlier this year by order of Justice Ian Nordheimer of the Ontario Superior Court. The case, Ali v. Canada, outlined the details of his immigration detention, which was comprised of five years in a maximum-security prison and included 103 consecutive days in solitary confinement. The Canadian government intended to deport Mr. Ali, but his lack of documentation verifying his nationality meant that he had nowhere to go. Born in Ghana, Mr. Ali spent his childhood in different places, moving to Nigeria, Germany, the United States, and then finally to Canada at age 20. During this time he did not acquire any documents establishing his birth or nationality, and was unable to make a refugee claim when landing in Canada. Due to his criminal convictions and absence of legal status the Canadian government sought to deport him. But there was no country to deport Mr. Ali to, leaving him indefinitely detained for seven years.

According to the Canadian Border Services Agency (CBSA) there are 450 to 500 people detained under the Immigration and Refugee Protection Act at any given time. A person can be detained in Canada if they are deemed a flight risk, pose a danger to the public, or are unable to confirm their identity. Canada is one of the few western countries that has no prescribed maximum duration for immigration detentions. Detention in the EU is limited to 18 months; the U.S. has a limit of 6 months. This is also not a new issue. Canada has been called on twice by the United Nations to change its practices. Immigration detention raises serious issues with compliance to both human rights obligations and the rights guaranteed by Sections 7 and 9 of the Canadian Charter of Rights and Freedoms. These rights include both the right to life, liberty, and security of the person, and the freedom from arbitrary detention or imprisonment. These rights were especially salient in Mr. Ali’s case, and the holding that led to his release.

Mr. Ali was first found to be inadmissible to Canada in July of 1995. The Canadian government spent more than twenty years trying to deport him and was largely unsuccessful, except for his temporary return to Ghana in 1996. The CBSA claimed that Mr. Ali was uncooperative and was intentionally withholding information. They also claimed that he was inconsistent in his accounts of his upbringing, telling varying stories about his family, their whereabouts and the various aliases Mr. Ali had used while in Canada. The Immigration Division of the Immigration and Refugee Board classified him as a danger to the public and a flight risk. Despite monthly reviews of his case, the board sustained this classification, and his detention, for seven years.

Justice Nordheimer allowed Mr. Ali’s habeas corpus petition to be heard, declaring his situation to be an exceptional circumstance, therefore meeting the test for review as set in Chaudhary v. Canada (Minister of Public Safety and Emergency Preparedness). He noted the circumstances made it such that, “Mr. Ali’s detention could literally continue forever”. In replying to the Attorney General of Canada’s submission that the length of detention was not exceptional, Justice Nordheimer remarked, “If it is typical for Canada to detain persons for seven or more years for immigration purposes, then this country has a much more serious problem with its immigration process than is currently understood.” By this time Mr. Ali had spent almost twice as much time in detention than if he would have served jail-time as punishment for all of his criminal offences combined.

To Justice Nordheimer, this was unacceptable. The court rejected Mr. Ali’s flight risk status, holding that it was not demonstrated on the record. The court further rejected the submissions that Mr. Ali was being uncooperative by highlighting some of the ways in which he provided the authorities with as much information as he had, in addition to photographs and fingerprints. Nordheimer held, “To hold a person indefinitely, solely on the basis of noncooperation, would be fundamentally inconsistent with the well-established principles underlying ss. 7 and 9 of the Charter.” In the end, Mr. Ali’s Charter rights prevailed. Citizen or not, Mr. Ali was afforded equal protection under the law, a victory for all Canadians and an affirmation of the values our country strives to uphold.

Pressure for changes to the detention framework has been mounting for some time. In May 2016 more than 100 lawyers, legal scholars, and specialists called on the Ontario government to cancel the federal-provincial agreement that allows transfers of detainees to provincial criminal jails. This submission highlighted the poor conditions in these jails and the related human rights concerns. In August 2016, Public Safety Minister Ralph Goodale announced that $138 million would be spent to improve Canada’s immigration detention centres, including establishing a body to oversee the CBSA’s actions to ensure that they conform to international human rights standards. Most recently, in April 2017, the CBSA released the “New National Immigration Detention Framework”, outlining a set of intentions to change the current framework. Some of these initiatives include: increasing health care for detained individuals, lowering the number of minors, vulnerable persons and long term detainees in detention, and reducing the reliance on provincial correctional facilities for immigration detention. The framework also proposed working to implement an expanded national Alternatives to Detention (ATD) program. Two proposed programs include community supervision/guardianship and electronic supervision, which would promote the general goal of using detention as a last resort.

Hopefully these initiatives, in addition to Mr. Ali’s case, will incite change. Alvin Brown is currently challenging Canada’s immigration detention practice in Federal Court. Mr. Brown spent five years in a maximum-security provincial jail while awaiting deportation to Jamaica. Mr. Brown’s lawyer, Jared Will, contends that the practice of indefinite immigration detention is unconstitutional, arguing that a six-month limit should be imposed. In addition, Mr. Brown is seeking Charter damages as a remedy for the violations of his Charter rights. In addition to violations of his s. 7 and 9 Charter rights, Mr. Brown is claiming cruel and unusual punishment, a s. 12 violation, due to his mental health issues that persisted during his detention. Mr. Brown is seeking to recover $1,500 for each day of his incarceration. This case will mark the first time that a federal court will hear a challenge to the constitutionality of the practice of indefinite detention. It is being heard by Justice Simon Fothergill and is set to be decided sometime this summer.

Natasha Anzik is the Asper Centre’s summer research assistant and an upcoming 2L JD Candidate at the Faculty of Law. Norman Yallen is an upcoming 2L JD Candidate at the Faculty of Law.

*Sources omitted

Asper Centre’s Statement in Response to U.S. Executive Order

Posted on by Tal Schreier

The Asper Centre for Constitutional Rights shares our deep concerns with the January 27th executive order made by President Trump preventing individuals from the predominantly Muslim countries of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from temporarily entering the United States.

The Asper Centre for Constitutional Rights supports Prime Minister Justin Trudeau’s statement about Canada welcoming refugees and immigrants to our country.  We also support Canadian civil society organizations’ calls on the federal government to suspend the Safe Third Country agreement effective immediately, as sending asylum seekers back to the U.S. will put Canada in breach of its legal obligations in terms of the UN Refugee Convention and our domestic laws.

The Canadian Charter of Rights and Freedoms specifically prohibits discrimination based upon race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.  The Asper Centre for Constitutional Rights is honoured to promote our Charter as the supreme law of our land and to do everything within our mandate to ensure that our Charter is being respected.  This includes training and supporting current and future Constitutional law lawyers, who have a clear role to play in challenging this unconstitutional executive order and any other violations of the Constitution.   

The Asper Centre for Constitutional Rights supports the rights of refugees, immigrants, and dual citizens and we commit to ensuring that equity, diversity, and inclusion continues to be an essential part of our Canadian landscape.

Asper Centre’s fireside chat delves into the future of Charter litigation in Canada

Posted on by Tal Schreier

Asper Centre Fireside Chat with David Asper and Raj Anand

Should a government pay for its citizens to challenge the constitutionality of that government’s laws?  How reliable is a government’s commitment to provide this kind of funding?  More generally, is constitutional litigation the best way to protect Canadians’ constitutional rights?

On a cold November evening, the David Asper Centre for Constitutional Rights convened a fireside discussion of these questions in the Jackman Law Building.  The discussion featured alumni Raj Anand, LLB 1978, a prominent constitutional litigator and bencher of the Law Society of Upper Canada, and David Asper, LLM 2007, the Centre’s founder and a successful criminal/constitutional litigator.  (Most notably, Asper represented David Milgaard in overturning Milgaard’s wrongful conviction.)

Cheryl Milne, executive director of the Asper Centre, chaired the discussion, the focus of which was the Court Challenges Program (“CCP”).  Created in 1978, the CCP funded legal challenges to laws offending equality and official language minority rights guaranteed under the Canadian constitution, including the Charter of Rights and Freedom.  The program has funded more than 1,200 cases, but has also been cancelled, twice, by governments averse to funding challenges to their own laws.  The current Liberal government plans to revive the CCP, and is undertaking consultations to this end.

The discussion was a study in contrasting viewpoints: Anand’s more conservative (reflecting his long experience as a member of the CCP’s Equality Rights Panel), and Asper’s more radical.  Asper was adamant, for example, that the CCP’s strength comes from its independence.  “It’s irresistible, in my view, that when you have an organization whose objective is to challenge the government, sooner or later the government will defund you—whatever the stripe.”  Anand replied that perfect independence is impossible: “Ultimately, public money has to be carefully safeguarded and spent pursuant to government policies. So, like it or not, there are always public servants that have a direct and indirect impact on the program.”

Asper was unmoved, suggesting at one point that the CCP will always be “a sitting duck for government.”

While both lamented the CCP’s suspension by the Conservative government in 2006, they fastened upon different effects as being most significant.  Anand noted the deleterious effect on s. 15 of the Charter (equality rights) jurisprudence because of fewer, and more poorly supported, cases being brought to trial.  (“The kinds of arguments that were brought… became very weak.”)  Asper characterized the CCP’s suspension as anti-constitutional: “It sent a signal to Canadians that we were somehow less willing to get into the risk of rights litigation.  It was totally contrary to the spirit of the Charter.”

Milne then asked whether, given the CCP’s inherent limitations (in addition to independence issues, the CCP’s funding mandate—limited to equality and official language minority rights cases—has long been criticized as far too narrow), the CCP was the best way to support Charter litigation in Canada.

Asper dismissed this as a red herring.  “Something is better than nothing,” he said, “but the discussion of CCP is a Band-Aid to a much more significant problem in the Canadian justice system.”  Specifically addressing those in the audience watching live via webcast from Ottawa, he continued, “I believe that the courts, and the things that radiate inward from courts—judges, lawyers, systems, processes— are failing us.  The court system itself is the biggest barrier to the adjudication of Charter rights.”

Anand was much more circumspect.  “I think it’s a bit of a distraction to say that we have a bigger problem [i.e., access to justice] and therefore we shouldn’t look at this little problem [the CCP] and try to fix it.  We have a rare opportunity here, and the question should be how we put this program back in place more durably and more effectively than the previous program.”

The ensuing discussion canvassed various alternatives to constitutional litigation, including less reliance on traditional adversarial processes (at the cost of establishing fewer binding precedents), a specialized constitutional court (diametrically opposed to the Supreme Court of Canada’s view on which tribunals can adjudicate Charter claims), and reformed civil procedure rules.  Several members of the audience wondered at the viability of privately funded litigation supplanting the CCP, such as US-style charitable organizations seeking public interest standing to bring constitutional challenges.

No consensus emerged, and the discussion concluded with Asper underlining the ongoing—soon to be imminent—need to re-engage Canadians on the importance of Charter litigation following the CCP’s suspension in 2006: “We’ve probably come through an era of government where [the Charter] wasn’t so popular,” he said, “and that’s no longer the case.”  Asper concluded by reminding the audience of what he sees as the broader context for the reformed CCP.  Once again addressing the audience watching by webcast, he said, “Canadians are losing faith in our justice system as we continue to talk about doing all these things to fix it, and don’t fix it.”

By Christopher R. Graham / Photography by Salathiel Wesser

Asper Centre was granted leave to intervene in the SCC case on voting rights for long-term expats

Posted on by Tal Schreier

The case, Gillian Frank, et al. v Attorney General of Canada concerns two applicants who are Canadian citizens residing in the United States for employment reasons, who intend to return to Canada if circumstances permit. Both applicants were refused voting ballots for the 2011 Canadian General Election since they had been resident outside Canada for five years or more. The applicants sought a declaration that certain provisions of the Canada Elections Act violated their Charter-protected right to vote. A judge of the Ontario Superior Court of Justice declared the impugned provisions of the Act unconstitutional by reason of violating the applicants’ right to vote under s. 3 of the Charter, and the violation was not justifiable under s. 1.

A majority of the Court of Appeal allowed the Attorney General’s appeal, finding that the denial of the vote to non-resident citizens who have been outside Canada for five years or more is saved by s. 1. The limitation is rationally connected to the government’s pressing and substantial objective of preserving Canada’s “social contract” (whereby resident citizens submit to the laws passed by elected representatives because they had a voice in making such laws); it minimally impairs the voting rights of non-resident citizens by ensuring they may still vote if they resume residence in Canada; and the limitation’s deleterious effects do not outweigh the law’s benefits. In dissent, Laskin J.A. would have dismissed the appeal, finding that the “social contract” was not an appropriate nor a pressing and substantial legislative objective, and should not have been considered by the court. Justice Laskin also found that the denial of the right to vote was not rationally connected to the stated objective and did not minimally impair the rights of non-resident citizens, and that its harmful effects outweighed the stated benefits of the limitation.

The Asper Centre will intervene in March of 2018.

Professor Lisa Austin presented the Asper Centre brief to the Standing Committee on Access to Information, Privacy and Ethics

Posted on by Tal Schreier

The submission, made on June 14, 2016 discussed how Privacy Act reform must take into consideration the Canadian Charter of Rights and Freedoms. The submission also made several recommendations to the Standing Committee.

The brief can be read here: Privacy Act Brief.