Canada Needs to End the ‘Indefinite Detention’ of Migrants: And, the Supreme Court Should Make it So

Professor James C. Simeon, Head of McLaughlin College

School of Public Policy and Administration, Faculty of Liberal Arts & Professional Studies

York University, Toronto, Ontario, Canada

jcsimeon@yorku.ca

Why is Canada one of the few countries in the world that still practices “indefinite detention”? The deplorable practice of holding migrants for indefinite periods of time who are unable to establish their identity or who are unable to obtain the documentation required to be returned to their countries of nationality or former habitual residence is simply unconscionable. Frequently, such persons end up in provincial prison facilities and, for a few, who have been identified as “high risk” offenders, even in maximum security.^[1] It is important to underscore that migrant detention falls under immigration law and not criminal law, and, without the attendant safeguards found in the criminal justice system.^[2]

Canada is an outlier among Western liberal democracies who have established “reasonable time limits” for how long an undocumented migrant can be detained, that range from 28-days to one and half years. Even the United States of America has a six month limit on holding undocumented migrants in detention when there is no reasonable likelihood of their removal in the near future.^[3]

The United Nations Human Rights Committee has criticized Canada for this deplorable practice that violates a number of fundamental human rights and has called on the Canadian Government to set a “reasonable time limit” for the detention of migrants.^[4]

Several recent well-publicized cases have placed the issue firmly on the public agenda. Consider Kashif Ali, who the Canadian Government was trying to deport for 20 years. He languished in maximum security prison facilities for seven years before he was given, finally, a conditional release in 2017, by the Ontario Superior Court of Justice, on the basis of a habeas corpus application. Mr. Ali is now suing both the Canadian and Ontario governments for $57.5 million in damages for violating his Charter rights, breaches of fiduciary duties, and causing him to suffer from depression and anxiety, auditory hallucinations, and the deterioration in his physical health.^[5]

Ebrahim Toure is another noted case where he was held in detention for five and a half years, four and a half years in maximum security, before being released in 2018. Mr. Toure had never being charged or convicted of any crime in Canada. Yet, he was classified as “high risk” by the Canadian immigration authorities for having been convicted of selling illegal DVDs in the United States. He was released from detention by the Immigration Division of the Immigration and Refugee Board of Canada (IRB), but, only after the Ontario Superior Court of Justice ruled in 2017 that holding Mr. Toure in a maximum security facility was “cruel and unusual treatment” and ordered that he be placed in a less restrictive Immigration Holding Centre.^[6]

The policy and practice of holding undocumented migrants in “indefinite detention” has been criticized for not only being inhumane but violating the Canadian Charter of Rights and Freedoms that protects against “indefinite and arbitrary detention,” Section 9, as well as, “cruel and unusual treatment,” Section 12. It has been only through the efforts of advocacy groups such as End Immigration Detention Network (EIDN), No One is Illegal, Amnesty International (AI), the media, and legal counsel, who have been lobbying on behalf of their clients, that this basic human rights issue and concern has been brought to the Canadian public’s attention. Moreover, the negative impact of detaining undocumented migrants, especially, vulnerable persons such as children, is well-researched and documented.^[7]

Indeed, even the International Detention Coalition (IDC) has recognized that Canada endorses the use of Alternatives to Detention (ATD) in its own Citizenship and Immigration Canada Enforcement Manual (ENF 20).^[8]Nevertheless, “indefinite detention” is still available and in use by Canadian authorities against those whose identity is unknown and cannot be deported and with no prospects of ever being able to be deported, despite the fact they are not a danger to the public. Clearly, such a deplorable practice is not worthy of our federal and provincial governments in Canada and, thankfully, has been recognized by the provincial Superior Courts as a serious breach of a person’s most fundamental human rights.  For instance, Justice Ian Nordheimer, of the Ontario Superior Court of Justice, ruled that, “One thing is clear, and that is that Canada cannot purport to hold someone in detention forever,”^[9]

Further, the Ontario Court of Appeal, in Chaudhary v. Canada (Minister of Public Safety and Emergency Preparedness) held that habeas corpus petitions involving immigration detainees should be heard in the Ontario Superior Court of Justice, on their merits, and in exceptional circumstances. And, more importantly, the Ontario Court of Appeal ruled that, “A detention cannot be justified if it is no longer reasonably necessary to further the machinery of immigration control.”^[10]

In Scotland v. Canada (Attorney General), Justice E. M. Morgan, of the Ontario Superior Court of Justice, came to the judgement that the Immigration Division of the IRB was violating the applicant’s Charter rights “without any grounds and justification.”^[11] Justice Morgan opined,

… a lawful detention is a purposive one, and that continued detention does not meet this requirement where it essentially embodies the responses of a law enforcement agency to unintentional, technical breaches. These represent neither the moral culpability which is a necessary ingredient to a just incarceration, nor the preventative immigration enforcement rationale reflected in the statutory authority to detain.^[12]

The matter is now before the Supreme Court of Canada in Minister of Public Safety and Emergency Preparedness, et al. v. Tusif Ur Rehman Chhina. The question before the Supreme Court of Canada is whether applications of habeas corpus, in the context of a lengthy detention of uncertain duration, are possible despite there being a “complete, comprehensive, and expert regime which is as broad and as advantageous as habeas corpus   (the « Peiroo principle »)?”^[13]

Given the jurisprudence cited above and the clear findings of the Ontario Court of Appeal and the Ontario Superior Court of Justice with respect to “indefinite detention,” the UN Human Rights Committee’s condemnation of Canada’s policy and practice of “indefinite detention,” and the fact that Canada is one of the few Western liberal democracies in the world that follows this deplorable practice, then, one can be reasonably optimistic that Supreme Court of Canada will find that holding someone in detention for an indefinite period, when it “no longer furthers the machinery of immigration control,” is unconstitutional and a breach of the person’s most fundamental Charter rights. 

Holding migrants in detention indefinitely, and, sometimes in maximum security, who cannot establish their identity in order to exercise their deportation to their purported countries of nationality or former habitual residence, and who are not a danger to the Canadian public, is simply wrong and should no longer be either morally acceptable or legal. Hopefully, the Supreme Court of Canada will rule soon that “indefinite detention” is not constitutional.

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^[1]Brendan Kennedy, “Caged by Canada,” The Star, Friday, March 17, 2017, https://www.thestar.com/projects/short/2017/03/17/caged-by-canada.html. retrieved 2019-02-23.

^[2]Petra Molnar, “Immigration Detention in Canada,” The Canadian Encyclopedia, August 17, 2016, https://www.thecanadianencyclopedia.ca/en/article/immigration-detention. (accessed March 21, 2017)

^[3]  Zadvydas v. Davis533 U.S. 678 (2001), https://supreme.justia.com/cases/federal/us/533/678/, retrieved on 2019-03-10. In this judgement, the US Supreme Court stated that “indefinite detention” is not permitted under the Constitution of the United States. 

^[4]UN Human Rights Committee, Concluding observations on the sixth periodic report of Canada, 13 August 2015, paragraph 12, Immigration detention, asylum seekers and non-refoulement.  https://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fCAN%2fCO%2f6&Lang=en. retrieved on 2019-03-10.

^[5]Brian Platt, “Stateless immigrant jailed for seven years while Canada tried to deport him sues for $57.5 million,” National Post, June 12, 2018, https://nationalpost.com/news/politics/stateless-man-jailed-for-seven-years-while-canada-tried-to-deport-him-sues-for-57-5-million. retrieved 2019-02-24.

^[6]Brendan Kennedy, “Immigration detainee Ebrahim Toure finally free after more than five years,” The Star, September 21, 2018,  

https://www.thestar.com/news/investigations/2018/09/21/immigration-detainee-ebrahim-toure-finally-free-after-5-12-years.html. retrieved on 2019-02-27.

^[7]See von Werthem, et al, “The impact of immigration detention on mental health: a systematic review,” Psychiatry, 2018 18: 382,

https://bmcpsychiatry.biomedcentral.com/articles/10.1186/s12888-018-1945-y. retrieved on 2019-03-10.  

^[8]International Detention Coalition (IDC), Alternatives to Detention Database, Canada, https://database.idcoalition.org/?s=Canada. retrieved on 2019-0310.

^[9]Ali v Canada (Attorney General), 2017 ONSC 2660 (CanLII), http://canlii.ca/t/h3h49, retrieved on 2019-02-24.

^[10]Chaudhary v. Canada (Minister of Public Safety and Emergency Preparedness), 2015 ONCA 251 (CanLII), http://canlii.ca/t/gh66v, retrieved on 2019-03-10.

^[11]Scotland v. Canada (Attorney General), 2017 ONSC 4850. https://www.canlii.org/en/on/onsc/doc/2017/2017onsc4850/2017onsc4850.html. retrieved on 2019-03-21.

^[12]Ibid.

^[13]Minister of Public Safety and Emergency Preparedness, et al. v. Tusif Ur Rehman Chhina. https://www.scc-csc.ca/case-dossier/info/sum-som-eng.aspx?cas=37770, retrieved on 2019-03-10.