Media Release: Federal court questions border enforcement on constitutionality of indefinite detention


MAY 15, 2017

Media Contact: Nisha Toomey, 647-270-3025

Federal court questions border enforcement on constitutionality of indefinite detention

Toronto, May 15, 2017 — The Federal Court of Canada is set to hear a historic case today, challenging the constitutionality of Canada’s immigration law and the federal government’s much-criticized practice of indefinite detention. This is the first time that Canada Border Services Agency, which is not subject to an oversight body, will be called on to justify its practice of long-term imprisonment.

The End Immigration Detention Network (EIDN), a party in the case, will be presenting arguments that indefinite immigration detention is in violation of international law and sections 7, 9, and 12 of the Charter of Rights and Freedoms. EIDN’s case is based on evidence from two of its members who have organised with hundreds of detainees; three legal experts; and five former detainees and family members.

“It really comes down to one question for the federal government. How long can someone be held before it becomes indefinite?” said EIDN member Nisha Toomey, surrounded by families of detainees and dozens of supporters outside the court Monday. “People have been held for years on end, some have died in detention. Trudeau must address the lack of policies limiting detention in Canada. We need a 90-day-limit.”

Canada is one of the few western countries without a time limit on detentions.  Detainees, advocates, and the United Nations have criticized the lack of fair judicial oversight in the federal system. EIDN is asking the court to instruct the federal government to create legislative reform to end indefinite detention.

Alvin Brown, on whom today’s case is based, came to Canada at the age of 7, where he was a permanent resident. He spent almost 5 years detained for immigration purposes in maximum security prisons, before his deportation and resulting separation from his family was expedited when his case came before the Ontario courts in August, 2016.

“It was horrible, I would have rather been dead than detained, not knowing when I would be released,” said Brown speaking from Jamaica this week. “It was traumatizing; I spent five years in there and I still can’t get over it. The experience is trapped in my mind.”

At least 15 people have died in Canadian immigration custody since 2000. The United Nations has repeatedly criticized Canada for refusing to introduce legislation that would place a 90-day limit on immigration detention. In a recent Ontario Superior Court decision, Justice Ian Nordheimer called Kashif Ali’s 7 year long detention ordeal, “unacceptable” and ordered his immediate release.  

Kimora, whose husband has been detained in maximum-security immigration prisons for eight months, spoke outside the federal court about the devastating impact indefinite detention has a on families.

“We didn’t have any chance to prepare, they [CBSA] just took him…He’s missed the kids’ birthdays. For a long time, I had to tell them that their father was working out of town, but now they know. Every day they are reminded of his absence,” said 33-year-old Kimora, who has lived in Canada for 25 years and resides with their three children in Oakville. “Canada says it supports family unification, but my husband is locked up indefinitely in a prison, separated from his children.”

Concerns have also been raised about the arbitrary or targeted nature of immigration detention. The majority of detainees EIDN has worked with are black, which runs counter to charter section 15, which guarantees the right to equality.

“Indefinite immigration detention violates international legal norms,” said MacDonald Scott, an immigration consultant who has provided legal support on the federal court case. Recently in the case of Kashif Ali, a Superior Court judge asked the government, how long is indefinite? Give me a time when it becomes indefinite? The government could not provide a time and clearly believes they can hold people as long as they like.”


The hearing at the federal court will run Monday and Tuesday of this week. EIDN affidavits are available upon request.



Background and Key Facts

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