Canadian Lawyer

40 A U G U S T 2 0 1 7 w w w . C A N A D I A N L a w y e r m a g . c o m n May, a group of lawyers repre- senting a man who had been detained for more than five years in a maximum-security jail before being deported to Jamaica appeared in Fed- eral Court in Toronto. They were launching a challenge to the practice of indefinite immigration detention, arguing that the practice violates detainees' rights under the Canadian Charter of Rights and Freedoms. Canada, unlike some other coun- tries, has no maximum length of time for which a detainee may be held. And that's a situation that needs to be recti- fied, say immigration lawyers who rep- resent long-term detainees. The Canada Border Services Agency, a branch of Public Safety Canada, is entitled to hold a non-citizen for an indefinite period of time if that person is deemed to be a flight risk, a danger to the public or is unable or unwilling to prove or reveal his or her genuine identity. Although the average length of immigrant detention in Canada is about 20 days, the extreme cases prompt the calls for change. Victor Vinnetou, a South African man who was the longest-serving detainee in the Canadian immigration custody system, was held for 11 years before being released in January 2016 (he had apparently arrived in Canada on a false passport and refused to co-operate with efforts to establish his true identity). In some cases, immigrants may be held in indefinite detention because they are unable to document their birth or parentage. Kashif Ali from Ghana, who had lived in Canada for three dec- ades or so without legal status, was held in detention for seven years as he was unable to prove his citizenship and Canada was not able to deport him to either of his parents' countries of origin (Ali brought a successful habeas corpus application this past spring that resulted in his release). Jamaican national Alvin Brown, a permanent Canadian resident, spent approximately five and a half years in a maximum-security prison before his deportation in September 2016; he had allegedly refused to co-operate in obtaining a travel document. Brown's lawyer, Jared Will (who also represented Ali), appeared before Justice Simon Fothergill in the Federal Court with several other lawyers in May and identified a number of deficiencies in Canada's detention regime that Will says resulted in violations of ss. 7, 9 and 12 of the Charter. The lawyers proposed a list of remedies the court could make or, in the alternative, sought an order striking down the detention regime and leaving it to Parliament to legislate. Section 7 guarantees "the right to L E G A L R E P O RT \ I M M I G R AT I O N SEBASTIEN THIBAULT Detaining immigrants Immigrants in Canada can be held in indefinite detention for many years, and a group of dedicated advocates is pushing to change that By Elizabeth Raymer I

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