Immigration Detention

Immigration Detention Symposium: CARL Toolkit and Case law Compendium

Posted on by Tal Schreier

by Delia Luca and Jacob Webster

The final panel of the Asper Centre Immigration Detention Symposium held on March 15, 2019 focused on the Immigration Detention Toolkit (Toolkit) recently launched by the Canadian Association of Refugee Laywers (CARL) and the Asper Centre Clinic’s Compendium of jurisprudence related to the Immigration and Refugee Board’s (IRB) External Audit, soon to be available. In conjunction, the panellists advanced strategies for addressing the ongoing challenges in Canada’s immigration detention system and illuminated the discrepancies between the expectations articulated by the courts and the practice of the IRB’s Immigration Division (ID). The panelists were Jamie Chai Yun Liew, Associate Professor at the University of Ottawa and co-leader of CARL working group on Immigration Detention, Aris Daghighian, an Associate at Green and Spiegel LLP and member of CARL’s Working Group on Immigration Detention, Devon Johnson, a JD Candidate at UofT Law and Asper Centre Clinic Student and Jim Molos a JD Candidate at UofT Law and Asper Centre Clinic Student. The panel was moderated by Enbal Singer a 3L at UofT Law and co-leader of the Asper Centre’s student working group on Immigration and Refugee Law.

The Immigration Detention Toolkit

The Immigration Detention Toolkit was devised by CARL in order to provide recommendations on the steps counsel can take to ensure the fairest process possible outcomes for their clients in immigration detention.  The panelists modestly acknowledged that the Toolkit is a “living document”, an evolving document, that ought to be updated to reflect criticisms and recommendations. The Toolkit is the product of laudable advocacy across the country, in response to the Immigration and Refugee Board’s (IRB) External Audit. The panelists cautioned that the Toolkit should not be used in isolation, as it is meant to be employed by counsel in conjunction with the Chairperson’s Guidelines.

While touched on throughout the panel, the need to ensure fair representation for clients in the face of relatively unprincipled judgments strikes us as meriting a more elaborate discussion. How should counsel approach discrepancies and a lack of transparency with respect to the immigration detention system? The Toolkit seeks to aid counsel in discerning what they should demand of the ID. For instance, counsel must ask for sufficient disclosure in order to hold the Canada Border Service Agency’s (CBSA) officials accountable, CBSA should provide reasonable notice of the evidence or information that will be relied upon at the detention review, including any evidence that may exculpate the detainee. Knowing the right questions and making appropriate demands on behalf of clients is especially relevant in a legal forum where government officials and the ID have seemingly broad discretion.

The panel also touched upon the question of how to properly articulate detainee’s mental illness, addiction and other vulnerabilities. As legal practitioners working with vulnerable clients, one must acknowledge and represent their client’s circumstances in a manner that does not disaffirm their agency and active role throughout the process. Despite societal efforts at creating a safe environment where said vulnerabilities may be discussed openly, detainees’ suffering from various conditions continue to be stigmatized. In such cases, counsel must assess their client’s situation, identify the need to appoint a Designated Representation (DR) and inform the ID accordingly.

The Toolkit advances recommendations of how to relate to the vulnerability of detainees and encourage the courts to consider their vulnerability in a substantive, rather than merely procedural manner. Counsel must demonstrate that their client’s vulnerability should not be taken as a flight risk or risk to the public. Furthermore, counsel must highlight that the detainee’s mental health or addiction is not voluntary and may inhibit one’s capacity. In doing so, counsel must not severely victimize the client in a manner that strips the client of their perceived ability to improve their condition. This issue invokes the rising demands upon immigration lawyers to think creatively, as evidenced by the advent of using habeas corpus under section 10(c) of the Canadian Charter of Rights and Freedoms (“Charter”) on behalf of clients, to grant them relief from arbitrary state detention. All in all, in the face of broad discretion, counsel must challenge Canada Border Services Agency (CBSA) submissions and force adequate disclosure. As per the words of one of the panelists, counsel has the duty to “put CBSA’s feet to the fire” in hopes of facilitating a fair and just process.

A Compendium of Federal Court Jurisprudence

As clinic students at the Asper Centre last term, Jim Molos and Devon Johnson conducted a survey of relevant Federal Court case law and compiled a compendium of jurisprudence to assist practitioners in martialling precedent to advocate for their clients’ best interests in immigration detention hearings. Their presentation emphasized the minimum standards for lawful immigration detention and their interpretation under section 7 of the Charter in Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9. Molos stressed the importance of effective advocacy. Although the constitutionality of the Immigration and Refugee Protection Act (IRPA) has been affirmed by courts, particular detentions may still be unconstitutional. With relation to disclosure, it was stressed that section 7 of the Charter protects the right against having a case brought on undisclosed evidence. Thus, counsel should ensure that the Minister’s case is challenged effectively.

The latter half of Molos and Johnson’s presentation focused on alternatives to detention under section 58(3) of the IRPA. The panellists emphasized that all conditions imposed on release should be viewed as an imposition of liberty and thus must be subject to ongoing review in a way that ensures that the impositions do not deprive liberty disproportionate to risk.

In the question and answer period that followed the panel, an audience member questioned whether the CARL Toolkit is written in a manner accessible to unrepresented detainees or published in multiple languages. Liew and Daghighian acknowledged that this was an important suggestion and that while the Toolkit was written in an accessible manner, it was probably not accessible enough for a self-represented litigant. This speaks to the evolving nature of the document.

The CARL Toolkit is available here and the Asper Centre Federal Court Case law Compendium is forthcoming. The presentation used by Liew and Daghighian during the panel is available here and the presentation used by Molos and Johnson is available here.

Delia Luca and Jacob Webster are both 1L JD Candidates at the Faculty of Law and members of the Asper Centre’s Immigration & Refugee Law student working group. 

Immigration Detention Symposium: Habeas Corpus Panel Highlights

Posted on by Tal Schreier

 

by Mashoka Maimona and Renuka Koilpillai

The “Habeas Corpus Best Practices” panel was one of the highlights of the Asper Centre’s Immigration Detention Symposium, held on March 15, 2019. The panellists were immigration and refugee lawyers Subodh Bharati, Jared Will, and Swathi Sekhar. The lively panel was moderated by the Refugee Law Office’s Simon Wallace, who explained that the panel would focus on the current status of habeas corpus, and how it can be used as a litigation strategy in immigration detention cases.

Habeas corpus is a common law writ of relief for immigration detainees to challenge their detention as unlawful. Previously in Canada, as Will outlined, habeas corpus applications could not be used by people who were being held in immigration detention, as courts consistently held that they did not have jurisdiction to hear the case. This changed after Chaudhary v Canada, where the Ontario Court of Appeal (ONCA) stated that habeas corpus is a better remedy in cases of long-term detentions. Fast forward two years to 2017, where in Ogiamien v Ontario, the ONCA extended the use of habeas corpus to immigration matters whenever it can be shown to be a more advantageous remedy than the standard immigration processes. Although this was a step in the right direction, according to Will, Brown v Canada determined that habeas corpus applications should not be attached to Charter damages claims, as a Charter claim “distorts what is otherwise intended to be an expeditious process….and gives the Charter damages claim a higher priority for hearing than it would otherwise receive.”  The 2018 SCC appeal in Chhina (decision still pending) will provide important clarification on the scope of habeas corpus, potentially expanding or narrowing the judicial remedies in reviewing a person’s immigration detention.

Bharati’s goal in a detention review is to demonstrate that the immigration detention is unlawful: if it is “unhinged from the immigration purpose” (see Charkaoui and Chaudhary) or if there is any deprivation of liberty that follows from a procedurally unfair process. He called for s. 11 of the Charter to apply to immigration detention matters. Section 11 covers the legal rights that apply to those “charged with an offence,” including (a) the right to be informed without unreasonable delay of the specific offence, (b) the right to be tried within a reasonable time, and (e) the right not to be denied reasonable bail without just cause. Even the SCC has expressed disbelief that any administrative tribunal could imprison someone (see R v Wigglesworth), yet the Federal Court continues to maintain that s. 11 does not apply to immigration matters.

The Chhina appeal demonstrates that there is a greater concern by our courts in extending Charter rights to non-Canadians, as opposed to questioning why everyone does not enjoy the same set of rights, Bharati said. Under s. 11(d) of the Charter, Canadians enjoy the right to be presumed innocent until proven guilty according to the law in a fair and public hearing by an independent and impartial tribunal. Non-Canadians can, however, be placed in a maximum security prison without these safeguards. The defendant in a criminal bail hearing is brought to court in his or her street clothes — because “the presumption of innocence requires the garb of innocence,” as “every defendant is entitled to be brought before the court with the appearance, dignity, and self-respect of a free and innocent” person (see Eaddy v People). However, in immigration detention matters, where detainees are not being held for any criminal purpose, they appear at detention review hearings wearing an orange prison uniform. The detentions themselves can even be held in maximum security prisons. The minds of decision-makers who pass through these gates with armed guards can be reasonably assumed to be tainted. What follows from a procedurally unfair process is by its very nature unlawful, Bharati reminded the audience.

When asked about future litigation strategies, Bharati shared his stark truth: “One realization I’ve had is that the law is not meant to be the vehicle for social reform. It’s very difficult. Laws are made by people in power to keep their power. It’s about keeping the status quo.” Systemic change through the judicial system is about understanding the underlying principles, he added. One of these principles in how we measure the legitimacy of a law in its equal application.

Sekhar flagged how detainees are further criminalized for “non-cooperation” by CBSA officers, who threaten to invoke s. 16 of the Immigration and Refugee Protection Act (IRPA) and charge her clients criminally. This is done without understanding the experiences of the detainees, such as their potential fear of returning to their country, or how months and even years of incarceration affects their mental health.

Will advocated for more rules in this area, pointing to Quebec’s Code of Civil Procedure as an exemplar for its accelerated process for handling habeas corpus applications — a process that affords detention cases the importance and urgency they deserve. Forty-eight hours after providing notice, a detainee can plead in front of a judge (as everything else gets bumped down the list). This seems unsurprising, given the high-stakes in such detention cases that involve the deprivation of people’s liberty, dignity, minds, and lives. However, while the question on the writ is straightforward, boiling down to whether the affidavit raises reasonable and probable grounds to challenge the detention, detainees face “tense resistance” from the Department of Justice and the Ontario courts. The reality is that habeas applications are resource intensive and time-consuming, Will added, and because of the sheer length of the process, a habeas application may not be in a detainee’s best interest. Nevertheless, the first tool in a detainee’s arsenal is the threat of a habeas, he suggested.

Mashoka Maimona and Renuka Koilpillai 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.

 

Immigration Detention Symposium: Responding to the IRB’s External Audit

Posted on by Tal Schreier

 

by Olivia Martin and Adrian Ling

The first session of the Asper Center’s Immigration Detention Symposium, held on March 15, 2019 at the University of Toronto Faculty of Law, featured a panel discussing the 2018 Immigration and Refugee Board’s (IRB) External Audit report on Immigration Detention. Kathy Laird, a Toronto lawyer and author of the report, audited 312 immigration detention hearings for 20 different files selected on a random basis. She opened the panel by explaining that her task in completing the audit was to review the fairness of the process in order to ensure that the results of these detention hearings matched the evidence that was produced.

Laird candidly shared she was “shocked” by what she found when listening to the hearings and elaborated that some key themes were inconsistent and inaccurate factual findings and changing adjudicators within a single file. She shared one particularly impactful example of an individual who, in a single hearing, had his release plan turned down because it did not include drug counselling; it was in an urban setting, and it was too close to family where the last issue had occurred. However, in a subsequent hearing with a different adjudicator, a second release plan for the same individual was also turned down because it included unnecessary drug counselling, it was in a rural setting, and it was too far from family.

Aviva Basman and Nancy Weisman presented after Laird. Both were from the Immigration Division of the IRB, where Basman is Assistant Deputy Chairperson and Weisman is Senior Counsel.  As it turns out, the IRB began formulating a new set of detention policy guidelines in response to the problems found in Laird’s Audit. Additionally, between the time of the report and now, the Board had already begun implementing procedures in an effort to improve the system. Basman described a number of these changes, while Weisman spent the majority of her time outlining some of the new policies that were to be implemented in the guidelines.

Some of the changes Basman described related to the continuity of expertise in a detainee’s file. These included ensuring the same member of the Board (who would roughly fill the role of a judge in these decisions) would preside over each of a detainee’s hearings and making sure that the detainees’ bondspeople were being interviewed by members directly. It was surprising to us that this was not already the case, as it seems like the most intuitive way for these hearings to occur. Additionally, Basman was happy to announce that the new cohort of Board members recently hired all had experience in immigration and refugee law or detention work.

Weisman announced that the IRB’s detention guidelines would be published by the following Monday and highlighted some of its most significant shifts. The new policy de-emphasizes some of the categorical approaches that had been used before. For example, a lack of family ties to Canada is no longer dispositive of a person being a flight risk. Additionally, the new guidelines mandate a Stinchcombe-like breadth of ministerial disclosure and an active consideration of all possible alternatives to detention.

Hanna Gros, from the International Human Rights Program at the University of Toronto, emphasized that immigration detainees are held on administrative grounds, not criminal grounds. She highlighted that immigration detention is not a punishment, despite the fact that nearly a third of detainees were held in corrections centres last year, and immigration detainees are generally detained for reasons completely unrelated to public safety, most often including issues of unclear identity or potential flight risk.

Sarah Boyd, an associate at Jackman and Associates who works directly with detainees, spent time discussing what a procedurally fair detention hearing might look like. Boyd passionately emphasized that a procedurally fair detention hearing would look like any other procedurally fair hearing, featuring two parties coming to the table with the same information and being treated equally by the tribunal. However, from Boyd’s point of view, there are barriers that currently make many detention hearings less than fair for detainees, including the different standards that the detainee’s counsel and the CBSA officers are held to. While the detainee’s counsel is standing at the metal detector removing staples from paperwork as required, the CBSA officer is often in the hearing room chatting about their weekend with the Board member presiding over the hearing.

Despite their criticism, both Gros and Boyd expressed optimism that the IRB’s new detention guidelines would address a number of the concerns they discussed in the panel, with Gros noting that the guidelines are “crucial first steps in the right direction, but not the ultimate solution.”

Overall, the group shared a consensus that there is still need for further improvement and that the required change requires a concerted effort from all the stakeholders involved.

View a recording of the panel here.

Access the RESOURCES from the Immigration Detention Symposium here.

Olivia Martin and Adrian Ling are 1L JD Candidates at the Faculty of Law and members of the Asper Centre Immigration and Refugee Law student working group. 

 

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