w w w . C A N A D I A N L a w y e r m a g . c o m A U G U S T 2 0 1 7 41
life, liberty and security of the person
and the right not to be deprived thereof
except in accordance with the principles
of fundamental justice"; s. 9 guarantees
"the right not to be arbitrarily detained
or imprisoned"; and s. 12 guarantees "the
right not to be subjected to any cruel and
unusual treatment or punishment."
Will says the most recent statistic he
had seen showed that 53 people across
Canada had been in detention for more
than six months, down from "closer to
160" a year ago. However, "a statistical
trend you see . . . is that the longer you're
in, the less likely you are to get out. Once
people start pushing the six-month, one-
year [detention periods], those are the
ones you'll see in for a long time."
Anthony Navaneelan, a counsel in the
Refugee Law Office at Legal Aid Ontario,
told attendees at a detention panel at
the Canadian Bar Association's Immi-
gration Law Conference in June that he
believed that two years maximum would
be an appropriate period of detention for
immigrants. This is in line, he said, with
penal code provisions for non-co-oper-
ation, which carry a maximum sentence
of two years in prison.
And in last year's landmark decision
R. v. Jordan, the Supreme Court of Can-
ada ruled that completion of criminal
proceedings should take no more than
30 months in the superior courts, he
added.
Barbara Jackman, of Jackman
Nazami & Associates in Toronto, suc-
cessfully argued Chaudhary v. Canada
(Public Safety and Emergency Pre-
paredness) before the Ontario Court of
Appeal in 2015. In that case, the court's
ruling allowed immigration detainees
to apply to the Superior Court of Justice
for habeas corpus to challenge their
incarceration.
Habeas corpus cases before the Fed-
eral Court are subject to review every
30 days. In reviewing a case for deten-
tion review (Canada (Citizenship and
Immigration) v. Harkat), Jackman says
she noted that the Federal Court put the
onus on the detainee to show that he
should be released. "That's not true in
criminal cases," she notes.
"I've been practising in this area for
a long time," says Jackman, but it wasn't
until she assisted in Ogiamien v. Ontario,
2016 ONSC 3080 — a case involving two
inmates, one of them an immigration
detainee since 2013, who successfully
argued that their Charter rights were
violated by lockdowns at a Milton jail
last year — that she realized "there's no
structure to the detention system.
"There are manuals [and legislation]
for how people are to be treated in the
criminal system, but in the immigration
system, you just go into a black hole. . . .
It's wrong," she says. "We don't do this in
any other area of the law."
Minister of Public Safety and Emer-
gency Preparedness Ralph Goodale
announced last August an investment of
$138 million to improve and minimize
the use of immigration detention, includ-
ing expanding alternatives to detention
and strengthening partnerships with the
Red Cross and United Nations (which
in 2015 issued a report saying that Can-
ada's treatment of immigration detainees
was cruel and unusual and resulted in
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