Brown v Canada (Public Safety) 2018 ONCA 14: Ontario Court of Appeal Latest to Rule Immigration Detention System is Constitutional

In Brown v Canada (Public Safety) 2018 ONCA 14, the Ontario Court of Appeal (“ONCA”) found that despite his detention for five years while awaiting immigration removal to Jamaica, and despite the existence of international guidelines against such protracted detention, Alvin Brown’s rights not to be arbitrarily imprisoned or subjected to cruel and unusual punishment under sections 7 and 9 of the Charter were not breached.

The Court rejected Brown’s argument on the grounds that the Canadian Border Security Agency (“CBSA”) reasonably believed that his removal would be achieved despite delays from the Jamaican authorities and because the Immigration and Refugee Act (“IRPA”) requires the CBSA to conduct a quasi-judicial review every thirty days.

And because Brown was removed to Jamaica before the case was heard, he could not proceed with a habeas corpus application which has been successful in similar cases of lengthy pre-removal detention.

Brown’s lawyers further argued that Canada should adopt international norms by setting a maximum period of detention. For instance, the United States imposes a limit of six months and the European Union places an 18-month limit for its member states. The court rejected this argument on the basis that Brown failed to provide evidence explaining how those immigration regimes operate and how their detainee rights compare to Canadian law; and that ultimately, the IRPA regime operates differently from them.

Brown’s application at the ONCA follows Brown’s landmark case at the Federal Court. In Brown v Canada (Citizenship and Immigration) 2017 FC 710, Brown’s lawyers sought a declaration that detaining individuals for more than six months before deportation was presumptively unconstitutional and asked the court to impose a cap on pre-removal detention of 18 months. The court declined, stating that the absence of a time limit under IRPA is not unconstitutional. Instead, the judge said that the matter is best addressed either by the Immigration Division, a superior court in a habeas corpus application, or on judicial review.

So far, both Brown’s applications at the ONCA and the Federal Court have been unsuccessful. However, the Federal Court certified the issue thereby granting leave to the Federal Court of Appeal. The constitutionality of indefinite pre-removal detention thus remains an open question.

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

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