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CONSTITUTIONAL ISSUES AND LEGISLATION - Canadian Charter of Rights and Freedoms

Wednesday, September 16, 2020 @ 6:14 AM  


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Appeal by Brown from the dismissal of his constitutional challenge of the immigration detention regime. He argued the detention provisions in the Immigration and Refugee Protection Act and the Regulations violated ss. 7, 9, 12 and 15 of the Canadian Charter of Rights and Freedoms (Charter). The appellant was found to be inadmissible to Canada based on a series of criminal convictions. At the end of his term of imprisonment he was ordered detained pending removal because he was both a danger to the public and a flight risk. He was held in provincial correctional institutions for five years when he was deported to Jamaica. Despite repeated and continuous efforts, the Canada Border Services Agency was unable to obtain a travel document for him from Jamaican authorities during this time. The appellant argued the Charter imposed a requirement that detention for immigration purposes not exceed a prescribed period, after which it was presumptively unconstitutional, or a maximum period, after which release was mandatory. The appellant argued where removal was no longer reasonably foreseeable, release was the only constitutionally compliant outcome, and the failure of the Act to expressly require release in these circumstances rendered the scheme constitutionally deficient. The appellant argued that for the detention provisions to pass constitutional muster, it must be impossible for the Immigration Division to order detention when there was no reasonable prospect of removal. The appellant also argued that the detention scheme offended s. 7 of the Charter because it placed an onus on detainees to justify why they should be released. The appellant challenged the constitutionality of detention orders under s. 12 of the Charter because the Immigration Division had no control over the location and conditions of detention.

HELD: Appeal dismissed. When the detention provisions were read in light of their text, context and purpose, there was no infringement of ss. 7, 9 or 12 of the Charter. The detention scheme possessed the same hallmarks of constitutionality that allowed the Supreme Court of Canada in Charkaoui to find that extended periods of detention under the Act’s security certificate detention scheme did not contravene ss. 7 and 12 of the Charter. These hallmarks included robust and timely review of the continued need for detention, the ability to consider terms and conditions that would neutralize the danger and the fashioning of conditions that would neutralize the risk of danger upon release together with power to order release if satisfied that the need for detention no longer existed. Charkaoui was also clear guidance from the Supreme Court of Canada, along with many other leading authorities, that the recourse against an improper exercise of discretion resulting in the over-holding of a detainee was an application to quash that exercise of discretion under administrative law principles and s. 24 of the Charter, not to strike down the section under s. 52 of the Constitution Act, 1982. The detention provisions complied with ss. 7 and 9 of the Charter. The immigration detention scheme had all the protections mandated by Charkaoui to ensure that extended periods of detention did not violate ss. 7, 9 and 12 of the Charter. Detention reviews were timely and frequent. The onus was on the Minister to establish both a ground of detention and that detention was warranted based on mandatory, case-specific factors. Detention could only be ordered where there were no appropriate alternatives. The legality of the detention was subject to judicial scrutiny in the Federal Court. The Act was not constitutionally deficient because it did not state expressly that which the law already required. Jordan did not alter the constitutional holdings in Charkaoui. Sections 7 and 9 of the Charter did not require fixed limits on detention. The Charter required that discretion be guided by objective criteria capable of identification, articulation and judicial supervision. There was no breach of s. 12 of the Charter. The evidence of conditions of detention fell far short of the threshold of cruel and unusual punishment set by the Supreme Court of Canada and did not support the broad declaration sought by the appellants. The purpose of detention was to facilitate public safety and removal. The Immigration Division had all the tools necessary to effect these objectives and the jurisdiction to impose conditions on release, which reflected an appropriate balance between the objectives of the Act and the detainees’ liberty interest. The detention review scheme established by Parliament imposed a continuing and overarching legal burden on the Minister to establish that detention was lawfully justified.

Brown v. Canada (Minister of Citizenship and Immigration), [2020] F.C.J. No. 835, Federal Court of Appeal, J. Gauthier, D.W. Stratas and D.J. Rennie JJ.A., August 7, 2020. Digest No. TLD-September142020006