In a decision released this week, the Appeal Court upheld a lower court ruling to dismiss the constitutional challenge filed by Alvin Brown, a man who was detained for five years in Canada before being deported to Jamaica
Brown, who has schizophrenia, was stripped of his permanent residency after a series of largely drug– and weapons-related convictions, and was ordered detained pending removal in 2011 because he was deemed both a danger to the public and a flight risk.However, Jamaica long refused to issue travel documents, so Brown remained in an Ontario correctional facility until the fall of 2016, when he was deported.
Brown’s lawyers argued the appropriate maximum limit in detention should be six months, while the advocacy group End Immigration Detention Network, which intervened in the case, argued it should be three months, court documents say. “In contrast, while removal is one of the objectives of detention, Canada does not have complete control over its realization. Removal may be frustrated by political turmoil in the receiving state. Removal may be delayed by a dearth of evidence as to identity … Travel documents must be obtained from a great number and diversity of countries, some of which may not be in a hurry to have a particular national returned.
Detention reviews are “timely and frequent,” the onus is on the public safety minister to establish both grounds for detention and that detention is warranted based on case-specific factors, and detention may only be ordered when there are no appropriate alternatives, he wrote.They said the immigration scheme is unconstitutional because the legislation grants discretionary power that may be exercised in an unconstitutional way.
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