Immigration detention system is legal, though not always applied perfectly: judge

Posted
July 26, 2017

A Federal Court judge says Canada's rules for detaining some foreigners who can't be deported quickly are constitutional though they may not always be applied perfectly.

Judge Simon Fothergill says there are mechanisms built into the law to allow detainees to challenge their detention and the conditions in which they are held, which is enough to make the system constitutional.

In a decision released Tuesday, Fothergill said that if those standards are sometimes not met, "this is a problem of maladministration, not an indication that the statutory scheme is itself unconstitutional."

The constitutional challenge was filed by Alvin Brown, a Jamaican man who was detained for five years before being deported last year.

Brown sought to cap detention at 18 months

The father of six and his supporters argued that foreigners who cannot be deported for various reasons are subjected to cruel and unusual punishment in that they may spend years behind bars never knowing when they might be released.

Brown sought to have the court declare that holding someone for more than six months before deportation is presumptively unconstitutional, and asked it to impose a "hard cap" of 18 months of pre-removal detention.

But Fothergill suggested a higher court should weigh in on whether the Charter of Rights and Freedoms requires a time limit on detention for immigration purposes after which release is mandatory, and certified the issue for appeal.

Brown's lawyer, Jared Will, said he was disappointed by the court's decision.

Read more: Immigration detention system is legal, though not always applied perfectly: judge