Canadian Lawyer

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 43 arbitrary detention). The CBSA has also started publishing statistics about immi- gration detention, and the number of immigration detentions has decreased under the new government, despite an increase in visitors to Canada, according to Public Safety Canada. But Hanna Gros, a senior fellow in the International Human Rights Pro- gram at the University of Toronto's Fac- ulty of Law, suggests it's not so much the investment made as what Canada does with those funds that will help long- term detainees. Gros has coauthored three reports on the effects of long-term detention on detainees, including chil- dren. The most recent report, "Invisible Citizens: Canadian Children in Immi- gration Detention," was published in February. That study found that, since 2011, Canada has housed more than 200 Canadian minors in detention in Toronto's Immigration Holding Centre, alongside hundreds of formally detained non-Canadian children, and its authors recommended that Canada implement alternatives to the detention of children rather than confining them in immi- gration detention facilities or separating them from their detained parents. The main recommendation of the three reports is that the government rely more on alternatives to detention, and allow immigrants to stay in non-custo- dial and community-based settings, says Gros. "In other countries, authorities can continue to supervise people from the community without imprisoning them," she says. "The alternatives are affordable." And in terms of mental health, it's hard to compare the impact of detention versus the alternatives, she says. The IHRP has enjoyed "a fruitful work- ing relationship with the CBSA" since the IHRP published its second report, "No Life for a Child: A Roadmap to End Immi- gration Detention of Children and Family Separation," in September 2016, says Gros. "There has been a lot of movement in this area; they've taken up a lot of our recom- mendations . . . and we've been pleased that the numbers of children in detention has been going down" and that the CBSA has started to publish its detention statis- tics online. Of the $138-million investment, though, she notes that "while any invest- ment is welcomed, it's also important that the money [is] being funnelled toward the right solutions." While the CBSA has been taking up the issue of indefinite deten- tion on a policy level, "when it comes to children, we recommended that the law be changed to align with international human rights law, specifically on the rights of the child." Section 60 of Canada's Immigration and Refugee Protection Act indicates that the best interests of children be taken into account as a factor in detention situations; however, the United Nations' Convention on the Rights of the Child stipulates that the best interests of children must be a primary consideration, Gros says. "So, there's a clear gap between our immigration law and international rights of the child; we must ensure that chil- dren are protected as required by inter- national law." Will, whose Charter case on behalf of former detainee Alvin Brown is now being decided by the Federal Court, has also seen "a lot of movement" on indefin- ite immigration detention in recent years. But, he says, "What they don't seem to be seriously considering are firm limits on the duration of detention. They also are not committing to ceasing to use provincial maximum-security jails for immigration detention. And there's no real discussion of the principle of rea- sonable prospect of removal to justify prolonged detention. Those are the most serious limitations." Some of these problems will take legis- lative or judicial change to fix, Will notes, and he doesn't see the current government as interested in such legislative reform. "Our only hope is for some sort of judicial intervention," he says, adding that "the courts are starting to notice and have these issues brought to their attention." Will says that, to his knowledge, there have been only a handful of habeas cor- pus cases that have been litigated, but "there will certainly be more to come," including a couple that he will be filing in the next few months. Jackman is less optimistic about the prospects for judicial change, at least at the Federal Court level. She says she hasn't "seen this happen before on contentious issues," although she allows that the issue may be tested again by the Supreme Court of Canada, particu- larly as the last indefinite immigration detention case decided by the Supreme Court was in 2007. Charkaoui v. Can- ada (Citizenship and Immigration) was a security certificate detention appeal that had been working its way through the legal system since 1992 and was decided in the appellants' favour. L E G A L R E P O RT \ I M M I G R AT I O N IN OTHER COUNTRIES, AUTHORITIES CAN CONTINUE TO SUPERVISE PEOPLE FROM THE COMMUNITY WITHOUT IMPRISONING THEM. THE ALTERNATIVES ARE AFFORDABLE. HANNA GROS, University of Toronto Faculty of Law

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