Ontario judge frees refugee claimant, calls detention Kafkaesque

August 15, 2017
Article Source
The Globe and Mail

A judge has called the legality of Canada's immigration-detention system into question in a case in which he set free a refugee claimant who had done nothing wrong, yet was detained in a maximum-security prison for 17 months.

Ontario Superior Court Justice Edward Morgan said the adjudicators who preside at detention hearings and review detentions on a monthly basis appear not to be truly independent from the immigration police force known as the Canada Border Services Agency. Instead, the adjudicators accept as fact whatever allegations the CBSA officers present, he said. And once they order an individual detained, they interpret their role in a such a way as to make it difficult or impossible to let that person go.

This pattern, Justice Morgan said on Monday, appears to go beyond the case of Ricardo Scotland, a 38-year-old from Barbados, whose experience he likened to that of the central figure in Franz Kafka's novel The Trial, a classic description of a justice system gone mad.

"As with Kafka's protagonist Joseph K, no one knows why he is detained," he said in his ruling.

The judge's ruling raises questions of whether Canada regularly detains refugee claimants and other non-citizens arbitrarily, in violation of the Charter of Rights and Freedoms.

In the latest fiscal year, 2016-17, Canada detained more than 6,200 immigrants or refugees, including 439 for more than 90 days. As in Mr. Scotland's case, most were deemed "unlikely to appear" at hearings or a deportation. The court ruling comes as throngs of refugee claimants, many originally from Haiti, cross the U.S. border seeking permission to stay in Canada.

Subodh Bharati, a lawyer representing Mr. Scotland, said many other detainees are being denied basic fairness. "Justin Trudeau says, 'It's 2017,' and this is what's happening in 2017 to too many people," he said in an interview.

Mr. Scotland – a single father of a 13-year-old girl, looking worn out after his longest single stretch in custody, 10 months in a provincial facility near Niagara Falls – said in an interview that he would celebrate his freedom "just by being with her. Being with her is a celebration."

He said the adjudicators "kept calling me a liar and saying, 'We can't trust you,' but I tried everything in my power to do whatever is right."

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