Immigration

Recapping YY Chen’s Constitutional Roundtable on Citizenship and the Charter

Posted on by Tal Schreier

by Michelle Huang and Jeffrey Wang

On Thursday, February 28, the Asper Centre hosted Professor Y. Y. Brandon Chen for a Constitutional Roundtable titled “Toward a Substantive Understanding of Citizenship in the Canadian Charter of Rights and Freedoms”. Chen is a lawyer and social worker by training, and is completing his SJD at UTLaw. He is currently an Assistant Professor at the University of Ottawa’s Faculty of Law, focusing his research on public law, health, and migration. Chen was also an Asper Centre clinic student in 2009 while a pursuing his JD at UTLaw.

For the Roundtable, Professor Chen presented an argument for a more inclusive judicial definition of Canadian citizenship within the Charter. The first part of his presentation focused on the three sections of the Charter that explicitly limit rights to citizenship – sections 3, 6, and 23. He argues that courts have relied on Federal statutes’ definitions of citizenship to inform their understandings of citizenship, resulting in a large number of people being inadequately protected. Chen’s stance is that Courts should be reading these sections of the Charter in a more purposive manner in an attempt to include non-citizen groups who are also entitled to the same degree of protection.

Chen posed two questions in relation to s.3, s.6 and s.23. Firstly, should the meaning of “citizen of Canada” depend on legislative definition? If so, are we allowing Parliament to skirt its Charter obligations? Secondly, he asks what a judicially constructed definition of citizenship would look like.

Chen proposed that citizenship can be understood as membership in a state. More specifically, it is the desire to foster a deep connection to a society. This idea is supported by social science research and the Supreme Court in the case of Ontario v Winner [1951] SCR 887. However, the present legislative definition of citizenship is not broad enough to encompass all groups of people who possess these qualities. There are non-citizens with similar interests and relationships to the Canadian state that are entitled to the protection of the Canadian government under this definition.

The second part of Chen’s legal argument was focused on how s.15 of the Charter interprets citizenship as an analogous ground of protection. Currently, the court only targets policies that draw a clear line between citizenship and non-citizenship. For example, in Toussaint v Canada (Minister of Citizenship and Immigration), 2011 CAF 208, the Federal Court of Appeal rejected a claim that a law discriminated against non-citizens simply because other non-citizen groups are protected by the law. This is a simplistic line of argument that tends to erase the distinct groups that exist under the non-citizen category, such as migrant workers, international students, and permanent residents. Despite their universal non-citizen legal status, these groups receive differential rights from the government.

Chen emphasized that Canadian courts have ruled that discrimination based on one type of disability is still disability discrimination, even if other types of disabilities are protected. In recognizing that there are different non-citizen groups who receive differential treatment, the same logic should be applied to them.

Overall, Professor Chen presented a compelling argument for the courts to understand citizenship in a way that more actively protects individuals’ rights. In questioning the courts’ reliance on Parliament’s definition of citizenship, he opened up the possibility of protecting more individuals under the Charter who are already substantive members of Canadian society. Furthermore, in challenging the normative line between citizenship and non-citizenship under s.15, Professor Chen advocates for a more nuanced and complex understanding of differential (non)citizenship experiences.

Michelle Huang and Jeffrey Wang are 1L JD Candidates at the Faculty of Law. They are also members of the Asper Centre Immigration & Refugee Law student working group this year.

External audit of immigration detention review shows pattern of serious Charter violations

Posted on by Student

By Cheryl Milne

On July 20, 2018, the Immigration and Refugee Board of Canada released an external audit performed by independent auditor, Katherine Laird, on Canada’s immigration detention review system. She examined randomly selected cases where immigration detention exceeded 100 days. The report documents serious concerns about procedural fairness leading to lengthy incarceration. A review of the document headings shows a litany of unfair practices and barriers to justice that have left many detainees languishing in detention with little hope of release. They include:

  • Failure to allow the detained person to hear and present evidence;
  • Failure to decide afresh as required by the legislation;
  • Uncritical reliance on Canadian Border Security Agency Hearing Officers;
  • Barriers to participation of detained person in the hearing; among others.

The overall finding, articulated as “notable discrepancies between the expectations articulated by the courts and the practice of the Immigration Division,” is based upon many specific instances of practices that show an administrative system that has become one-sided, unfair and callous to the impact of long-term incarceration on individuals.

Calling many of the practices a fundamental breach of natural justice, the report references the Federal Court in Brown v Canada (Citizenship and Immigration):

“Citing Charkaoui, the Court stated:

Before the state can detain people for significant periods of time, it must accord them a fair process. This basic principle has a number of facets. It comprises the right to a hearing. It requires that the hearing be before an independent and impartial decision-maker. It demands a decision based on the facts and the law. It entails the right to know the case put against one, and the right to answer that case.”

The liberty interests as stake are significant – cases reviewed involved detention of more than four months – thus invoking the principles of fundamental justice that provide the necessary limit on government action. While the majority of persons in the immigration detention system (88%) are released within 90 days, this is still a significant amount of time. Of those held longer, 64% were released within 180 days (based on 2017 statistics). However, also in 2017, 80 individuals remained in detention for over a year. For those people the detention review hearings seemed to be most problematic and the breaches of fairness most pronounced.

The most problematic jurisdiction examined is the Central Region encompassing most of Ontario. Not surprising, this is the district in which virtually no legal aid was provided to detainees and where fewer detainees therefore had the benefit of legal representation. The auditor also found that the practices of Canadian Border Services Agency were often more adversarial in this jurisdiction.

Overall it is a strong indictment of an administrative system that seems inured to the impact of detention on individuals and oblivious to the obligations of the government under the Charter. The audit finds that too often the onus of proof seemed to have slipped over to the detained person to demonstrate why they should be released, when the original grounds for detention were on shaky factual grounds.

The report makes a number of recommendations, but what is clear is that a cultural change is needed. The auditor notes that the Immigration Division should “encourage a tribunal culture that values compassionate adjudication”. But more than an attitudinal shift is needed. Only substantive reform will fix a system that has skewed so far from the rule of law and the Charter of Rights and Freedoms.

Image by Diego Torres Silvestre

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.