Immigration detainees can be jailed indefinitely, federal judge rules

Lawyer Jared Will argued existing laws put “too much confidence and too much power” in the hands of immigration officials. But Justice Simon Fothergill’s decision Tuesday found the “shortcomings” of Canada’s immigration detention system were due to misapplication of the law, not the law itself.

Canada’s practice of indefinitely jailing immigration detainees does not violate the Charter of Rights and Freedoms, a Federal Court judge ruled Tuesday.

“The question of when detention for immigration purposes is no longer reasonable does not have a single, simple answer,” Justice Simon Fothergill wrote in his 58-page judgment. “It depends on the facts and circumstances of the case.”

Lawyers representing former immigration detainee Alvin Brown — who spent five years in a maximum-security jail before the government was able to deport him to Jamaica last September — had argued that Canada’s entire immigration detention regime was unfair and unconstitutional. They called upon the court to set a maximum length of time the government could detain non-citizens while trying to deport them, as is the case in some other countries.

Fothergill dismissed their application, writing that the system’s “shortcomings” were due to the misapplication of the law, not the law itself. When “properly interpreted and applied,” he wrote, existing regulations comply with the charter.

Jared Will, Brown’s lawyer, said the fact the law can be misapplied and does not protect detainees against its misapplication is the problem. Existing laws put “too much confidence and too much power” in the hands of immigration officials, he said. “What we’re looking for is a resolution that will provide the adequate, necessary protection.”

Will said he intends to appeal the judgment, and a key part of the jared-will.jpg.size.custom.crop.1086x724court ruling allows that to proceed, as Fothergill certified a question specifically about establishing a time limit on immigration detention.

“The Federal Court of Appeal and maybe one day the Supreme Court will hear and decide these issues,” Will said.

In addition to Brown’s case, the court also heard evidence from five other former immigration detainees and their families. Their stories were shared by the End Immigration Detention Network, which was granted third-party standing in the case.