Pre-Deportation Detention and the Charter

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A recent Ontario Court of Appeal decision dismissed the appellant’s claim that the detention he suffered prior to being deported to Jamaica was cruel, arbitrary, and indefinite. The appellant arrived in Canada in 1983 and became a permanent resident by 1984. However, between 1999 and 2010, he received 18 convictions, some of which were for violent crimes. In January 2011, he completed a criminal sentence, at which point he was detained by the Canada Border Services Agency for a removal order that was issued in 2005.

The appellant was released from detention approximately three months later, but was detained for a second time in September 2011 for breaching his bail conditions. The appellant was found to be a danger to the public and a flight risk. For the next five years, he was held in a maximum security institution. The five year wait was the result of Jamaican authorities raising concerns about the appellant’s identity, as well as his mental health. The delays were a result of the appellant losing both his passport and other forms ID and not being able to produce his original birth certificate. The removal was eventually completed in September 7, 2016.

The appellant maintains that the five years of detention were a violation of his rights under s. 7, s. 9, and s. 12 of his Charter rights.

 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

 Everyone has the right not to be arbitrarily detained or imprisoned.

 Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

The appeal was dismissed on the grounds that:

  1. The appellant’s case was reviewed every 30 days “through a process recognized as procedurally fair”. No violation of due process was found.
  2. The deprivation of the appellant’s liberty was within an acceptable standard and justified.
  3. The legislative criteria for the detention had been met (i.e. it was for a valid purpose), therefore s. 9 was respected.
  4. The appellant received adequate care in detention, therefore respected s. 12.
  5. The appellant was detained pursuant to a lawful process.
  6. The prolonged detention was the result of the Jamaican authorities, not the Canada Border Services Agency.

This primary issue of the appeal revolved around whether it was reasonable and justifiable to keep the appellant detained for five years, while administrative difficulties further delayed his removal. While this specific case was not found to be an infringement of the appellant’s rights, the case raises questions as to what is owed to individuals by administrative bodies, particularly in the context of immigration.

Keeping in mind mental health concerns raised by the Jamaican authorities and the social impacts of detention, I am forced to consider the negative impact of an indefinite detention on an individual. Procedurally, the Court’s finding that the detention was justified is logically sound; however, their decision brings attention to both the inefficiencies of international relations and the ways that these inefficiencies negatively impact vulnerable individuals. It seems as though it would be more just to develop alternate means of securing flight risks in the case of removal orders, as opposed to keeping individuals in maximum security institutions. Though not necessarily applicable in this case, the criminalization of undocumented migrants, in the current U.S. political climate, and also in our own federal system further alienates and harms vulnerable individuals.

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.