Globe and Mail: Jailed in Canada, unwanted by Iraq, refugee struggles for way out of legal limbo

by Joe Friesen

Ayad Alshammery has been imprisoned without charge for nearly five years.

He is waiting to be deported. But Iraq, the country of his birth, won’t take him back. He is stuck, perhaps permanently. He thinks he will die in prison.

There are eight men in Canadian prisons who have been held without charge for more than three years, according to the Immigration and Refugee Board. Another 58 people have been held for more than a year. In the United States, those awaiting deportation cannot be held beyond what’s known as a presumptive period, usually 90 days – but in Canada there’s no clear limit. People awaiting deportation can be imprisoned for lengthy periods even if they aren’t charged with a crime.

Mr. Alshammery, 45, is imprisoned in a maximum security facility with other immigration detainees, sealed off from the outside world behind razor wire, metal detectors and layers of brick and steel. While he served nine years for attempted murder, he is now in prison only because he’s in legal limbo.

Audrey Macklin, professor and chair in human rights law at the University of Toronto, says she does not think this form of imprisonment is permitted under the Constitution. “What it amounts to is indefinite detention,” Prof. Macklin says. If a citizen would have been on the street, she asks, why should different rules apply to non-citizens?

The door to the visiting room opens with a buzz, triggered by unseen guards in a remote command centre. Mr. Alshammery – short, squarely built and dressed in bright orange coveralls – sits behind a wall of glass. He lifts a plastic phone to one ear.

“I’m not an animal. I don’t want to die in here,” he says through the receiver. “All I do is eat and sleep. It’s not a way to live.”

The government is not willing to let him out of prison. He was ordered deported because he came to Canada as a refugee and subsequently received two criminal convictions. He has been called a threat to public safety. Mr. Alshammery accepts he did wrong and is willing to return to Iraq. The problem is that Iraq won’t take him.

His detention is reviewed every 28 days by an adjudicator with the Immigration and Refugee Board, a quasi-judicial body. Every time, the adjudicator rules that Mr. Alshammery will not be released. He was optimistic for the first 10 or 12 hearings, but hope has faded.

The Immigration and Refugee Board must consider public safety, flight risk and the prisoner’s level of co-operation when weighing its decisions. Lengthy detention alone will not support release if there are aggravating factors.

“Does being a non-citizen make him more dangerous?” Prof. Macklin says. “Is it that his human rights matter less because he’s not a citizen? If you take that seriously, it boils down to something like, ‘They’re less human than we are – somehow more dangerous.’ ”

Mr. Alshammery was recently diagnosed with lung cancer. The illness has made him acutely aware of how little time he may have to live. He would be happy to leave Canada and return to Iraq, he says, if only he could – anything would be better than this existence.

“I just want to go and live some kind of life,” he says. “It’s not safe [in Iraq], but it’s better than just sitting here.”

What stands in his way is the Iraqi government. Its embassy in Ottawa says Mr. Alshammery has not provided any documents that prove he is an Iraqi. Canada Border Services Agency says Mr. Alshammery is being unco-operative. Mr. Alshammery says he fled with nothing and has nothing to show. He has met with Iraqi officials and told them his place of birth, his various addresses and relatives, but they would prefer not to deal with him, he says. For more than nine years, they have delayed and rebuffed efforts by Mr. Alshammery and the Canadian government to resolve the situation.

Mr. Alshammery has written to the Iraqi embassy several times begging for help. In July he wrote, “I’m a citizen of Iraq and you are the only hope I got. So please, I’m asking you to help me.” When contacted by a reporter, the embassy laid the blame squarely on Mr. Alshammery: “As soon as Mr. Alshammery provides us with his Iraqi documentations, the embassy of the Republic of Iraq would do the necessary action according to the Iraqi law.”

Mr. Alshammery left Iraq in 1991. He says his brothers were killed during the Iran-Iraq War and his distraught father then cursed the name of Saddam Hussein in public. His father was arrested, taken to Abu Ghraib prison and killed, he says. After the first Gulf War, Mr. Alshammery fled to a refugee camp in Saudi Arabia. He arrived in Canada in 1995 as a United Nations convention refugee. A few months later, he attacked a woman he was dating and stabbed her.

He was sentenced to nine years in prison and served all nine years. He couldn’t be deported in 2004. Iraq was in chaos. He was released on bail and spent four years living in Kingston, Ont., before he was charged again, this time with criminal harassment. He pleaded guilty, served a six-month sentence and was set to be released. Before he went free, he was placed on what’s called an immigration “hold.” He has been locked up ever since.

Now every morning at 5 a.m. a guard bangs on his cell door to wake him for prayer. He and his cellmate, a refugee claimant from Afghanistan, read the Koran in the gloom before the lights come on at 7:30. Prisoners are served meals in their cells as a safety precaution. Breakfast is cereal, juice, two pieces of bread, a bag of milk, a bag of juice and coffee. It’s the high point of the day.

At 9:30 a.m., the cell doors are opened and inmates can walk around or take a shower. At 10:45 a.m., they’re back in their cells to prepare for lunch and back out again a little after 1 p.m. The cycle of lock-up and release continues through supper until 8:30 p.m. Sometimes he walks for exercise. He reads the newspaper. He plays dominoes. He tries to stay out of trouble.

“It’s so noisy in here it does my head in,” he says.

A group called End Immigration Detention is advocating on behalf of immigration detainees. They orchestrated a hunger strike at the Lindsay prison earlier this year and are planning further protests. They’re demanding that Canada follow the U.S. and Britain and place a limit on the length of time a detainee can be held.

Mr. Alshammery continues to hope he might die a free man.


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