Brown v. Canada (Citizenship and Immigration)

Brown v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2017-07-25
Neutral citation
2017 FC 710
File numbers
IMM-364-15
Notes
Reported Decision
Decision Content
Date: 20170725
Docket: IMM-364-15
Citation: 2017 FC 710
Ottawa, Ontario, July 25, 2017
PRESENT: The Honourable Mr. Justice Fothergill
BETWEEN:
ALVIN JOHN BROWN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
and
END IMMIGRATION DETENTION NETWORK
Third Party
JUDGMENT AND REASONS
I. Overview [1] Alvin John Brown seeks judicial review of a decision of the Immigration Division [ID] of the Immigration and Refugee Board [IRB]. The ID found that Mr. Brown was a danger to the public and unlikely to appear for removal to Jamaica, the country of his birth. The ID therefore ordered that he continue to be detained under the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. The ID also found that Mr. Brown’s continued detention did not contravene the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c 11 [Charter].
[2] Mr. Brown was removed to Jamaica on September 7, 2016, the same day that Justice Alfred O’Marra of the Ontario Superior Court of Justice heard his application for habeas corpus. In a decision released on September 12, 2016, Justice O’Marra held that Mr. Brown’s detention was lawful and did not violate his Charter rights (Brown v Ontario (Public Safety), 2016 ONSC 7760 [Brown (ONSC)]). Mr. Brown nevertheless asks this Court to declare that the statutory regime under which he was held is unconstitutional.
[3] Before the state can detain people for significant periods of time, it must accord them a fair process. This basic principle has a number of facets. It comprises the right to a hearing. It requires that the hearing be before an independent and impartial decision-maker. It demands a decision based on the facts and the law. It entails the right to know the case put against one, and the right to answer that case. Precisely how these requirements are met will vary with the context, but each of them must be met in substance (Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 [Charkaoui]).
[4] In addition, there may be circumstances where immigration detention violates the Charter because it has continued for an excessive period of time, there is no reasonable prospect of removal to the detainee’s country of citizenship, or the conditions of detention have become intolerable.
[5] The evidence and arguments presented in this application by Mr. Brown and the End Immigration Detention Network [EIDN], a third party granted public interest standing, suggest that there may be shortcomings in the manner in which detention reviews are conducted by the ID. But none of these shortcomings are the inevitable consequence of ss 57 and 58 of the IRPA and ss 244 to 248 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations]. Properly interpreted and applied, these provisions of the IRPA and the Regulations comply with the Charter.
[6] The application for judicial review is therefore dismissed. However, in light of concerns raised by some of the evidence adduced in this proceeding, these reasons include a restatement of the minimum legal requirements for detention reviews before the ID.
II. Appropriate Respondent [7] The Minister of Citizenship and Immigration asks that the Respondent be identified as the Minister of Public Safety and Emergency Preparedness [PSEP], because the removal of persons from Canada and their detention pending removal is the latter’s responsibility. Mr. Brown says that the Minister of Citizenship and Immigration is the proper Respondent, because the relief sought includes declarations that ss 57 and 58 of the IRPA and ss 244 to 248 of the Regulations contravene ss 7, 9 or 12 of the Charter in a manner that cannot be justified under s 1. The Minister of Citizenship and Immigration is responsible for the administration of the IRPA and the Regulations.
[8] I agree with Mr. Brown that the Minister of Citizenship and Immigration is properly named as a Respondent, given the breadth of the constitutional challenge. However, because the Minister of PSEP is responsible under s 4(2) of the IRPA for removal and detention for immigration purposes, I will grant the request of the Minister of Citizenship and Immigration to add the Minister of PSEP as an additional Respondent. The style of cause is amended accordingly.
III. Applicant’s Background [9] Mr. Brown arrived in Canada in March 1983 when he was eight years old. He obtained permanent residence in June 1984. On January 17, 2000, he was found to be inadmissible to Canada due to a criminal conviction for trafficking in a controlled substance.
[10] Mr. Brown appealed his deportation order to the Immigration Appeal Division [IAD] of the IRB. The IAD found that it lacked jurisdiction and dismissed the appeal. Mr. Brown filed an application for leave and judicial review of the IAD’s decision in this Court.
[11] In October 2008, an officer with Citizenship and Immigration Canada [CIC] conducted a Pre-Removal Risk Assessment [PRRA] and concluded that Mr. Brown could be safely returned to Jamaica. Mr. Brown filed an application for leave and judicial review of the PRRA in this Court. Leave was refused in April 2009 (Court File No. IMM-5339-08).
[12] On June 23, 2009, Justice Michael Phelan found that the IAD had jurisdiction over the appeal of Mr. Brown’s deportation order, and returned the matter to the IAD (Brown v Canada (Public Safety and Emergency Preparedness), 2009 FC 660).
[13] In May 2010, Mr. Brown was convicted of robbery and uttering death threats. He was again found to be inadmissible to Canada on May 14, 2010.
[14] Mr. Brown was released from custody on January 27, 2011, and was then detained by the Canada Border Services Agency [CBSA]. He was released under the Toronto Bail Program in March 2011, but re-arrested in September 2011 for violating the conditions of his release by being uncooperative, using cocaine and living in a shelter.
[15] The IAD dismissed Mr. Brown’s appeal of his deportation order on October 27, 2011.
[16] In February 2012, the CBSA asked the Jamaican consulate to issue a travel document for Mr. Brown. Further information in support of the request was submitted in May 2012. Following an exchange of correspondence, a CBSA Officer met with Jamaican consular officials in November 2012 to resolve outstanding issues. The CBSA made further enquiries of the Jamaican consulate in May, July, August and September of 2013, but received no response.
[17] In October 2013, Jamaican consular officials advised that they were still awaiting confirmation of Mr. Brown’s nationality. The matter was discussed by Canadian and Jamaican officials in November 2013. From January to October 2014, there was still no confirmation of Mr. Brown’s nationality.
[18] Mr. Brown finally received a Jamaican travel document on September 6, 2016, and was removed from Canada the following day.
IV. Decision under Review [19] During a review of his detention by the ID on October 13, 2014, Mr. Brown took the position that his continued detention contravened the Charter. He argued that pre-removal detention exceeding three years was contrary to s 12 of the Charter, and the lack of a presumptive period within which removal must occur was contrary to ss 7, 12 and 15 of the Charter. Sections 7 and 12 of the Charter guarantee the right to life, liberty and security of the person, and the right not to be subjected to cruel and unusual treatment or punishment. Section 15 of the Charter enshrines the right to the equal protection and equal benefit of the law without discrimination.
[20] The ID noted that Mr. Brown had accumulated 17 criminal convictions between 1999 and 2010. These included drug trafficking, weapons offences, robbery, uttering threats and assault with a weapon. He had repeatedly broken probation orders, and provided no evidence of rehabilitation. The ID therefore concluded that Mr. Brown was a danger to the public.
[21] The ID then considered whether Mr. Brown was likely to appear for his removal to Jamaica. The ID noted that Mr. Brown had been in Canada since 1984, and that he had family in this country, including six children. The ID also noted that Mr. Brown had four convictions for failing to comply with conditions, probation orders and recognizances. He had a history of addiction and non-compliance with the law. The ID concluded that Mr. Brown was fearful of returning to Jamaica, had strong ties to Canada and had demonstrated “a complete disregard for the law”. The ID therefore concluded that Mr. Brown could not be trusted to voluntarily comply with his conditions of release, which included appearing for removal.
[22] The ID considered the factors prescribed by s 248 of the Regulations, and found that they weighed in favour of Mr. Brown’s continued detention. The ID made the following observation: “[a]lthough I am not in the position to predict how long it will take the consulate to issue documents for Mr. Brown, I have no evidence that leads me to believe that his detention will be indefinite, or that his removal is not going to be effected.” The ID noted that Mr. Brown had proposed no alternative to his continued detention.
[23] The ID rejected Mr. Brown’s Charter arguments, citing the Supreme Court of Canada’s decision in Charkaoui. The ID held that, consistent with the requirements identified in Charkaoui, there were regular reviews of Mr. Brown’s detention and the legislation was therefore constitutional. The ID observed that when Mr. Brown was released under the Toronto Bail Program in 2011, he failed to comply with the conditions of his release and his detention therefore resulted from actions within his control.
[24] The ID issued its decision on January 8, 2015. The ID held that Mr. Brown was a danger to the public and was unlikely to appear for his removal, and his continued detention was therefore warranted. The ID also held that there was no Charter violation.
[25] Mr. Brown filed an application for leave and judicial review of the ID’s decision in this Court on January 26, 2015.
V. Habeas Corpus Application [26] At the same time he filed the application for judicial review in this Court, Mr. Brown filed an application for habeas corpus in the Ontario Superior Court of Justice seeking his release pending deportation. He also requested a remedy under s 24(1) of the Charter on the ground that his rights under ss 7, 9, 10 and 12 of the Charter had been violated.
[27] Justice O’Marra dismissed both the application for habeas corpus and the request for a remedy under s 24(1) of the Charter, concluding as follows:
[95] I am not satisfied that [Mr. Brown’s] detention was unlawful. He was subject to a continuing process of review every thirty days in a quasi-judicial process that has been recognized as being procedurally fair – the subject having a right to be represented by counsel, to call evidence, cross-examine witnesses and to receive disclosure in advance.
[28] Justice O’Marra also rejected the argument that there was a violation of s 9 of the Charter, because Mr. Brown met the criteria for detention in the reviews, and his detention was for the valid purpose of removal, which continued to exist until he was finally removed in September 2016.
[29] In addition, Justice O’Marra found that Mr. Brown received adequate health care, and his detention did not amount to cruel and unusual treatment or punishment contrary to s 12 of the Charter.
VI. Issues [30] Mr. Brown does not challenge the reasonableness of the ID’s decision on administrative law grounds. His sole argument is that the legislative scheme which permitted his detention violates the Charter. He seeks declarations that ss 57 and 58 of the IRPA and ss 244 to 248 of the Regulations contravene ss 7, 9 or 12 of the Charter, and are not justified by s 1.
[31] Mr. Brown asks this Court to read in to the legislative scheme a requirement that pre-removal detention not exceed six months, after which it will be presumptively unconstitutional. He also says that there should be a “hard cap” on pre-removal detention of 18 months.
[32] This application for judicial review therefore raises the following issues:
A. Is the application for judicial review barred by the doctrine of mootness?
B. Is the application for judicial review barred by the doctrine of issue estoppel?
C. Do ss 57 and 58 of the IRPA and ss 244 to 248 of the Regulations contravene ss 7, 9 or 12 of the Charter?
D. If so, are ss 57 and 58 of the IRPA and ss 244 to 248 of the Regulations justified under s 1 of the Charter?
E. What are the minimum legal requirements of detention for immigration purposes?
F. Should questions be certified for appeal?
VII. Analysis A. Mootness [33] Mr. Brown has been removed from Canada to Jamaica, and the question therefore arises whether his application for judicial review is moot.
[34] The doctrine of mootness is an aspect of general policy or practice that allows a court to decline to answer questions that have become hypothetical or abstract, and where the decision of the court would have no practical effect on the parties. The essential question that must be asked is whether some “live controversy” which affects or may affect the rights of the parties continues to exist (Borowski v Canada, [1989] 1 SCR 342 at page 353 [Borowski]).
[35] The two-part test for mootness requires the Court to decide: (a) whether the concrete dispute between the parties has disappeared such that the issues have become academic; and (b) if the response to the first question is affirmative, whether the Court should nevertheless exercise its discretion to hear the case (Borowski at para 16; Bago v Canada (Minister of Citizenship and Immigration), 2004 FC 1299 at para 11).
[36] While the concrete dispute between the parties may have disappeared, in light of the decision of Justice Patrick Gleeson to grant third party public interest standing to the EIDN in this application, the Respondents fairly concede that the answer to the second question posed by the Supreme Court in Borowski is likely yes: the Court should exercise its discretion to hear this case in the broader public interest. I agree.
[37] In his decision dated October 7, 2016, Justice Gleeson identified a number of obstacles to bringing matters such as these before the courts. He granted third party public interest standing to the EIDN to ensure a full presentation of the issues, and to allow the Court to consider the legality of the impugned provisions of the IRPA and the Regulations even if the case was rendered moot by Mr. Brown’s departure from Canada:
[21] […] the evidence advanced by EIDN indicates that many detainees have little in the way of financial resources and face challenges in accessing legal representation. The challenge in bringing these issues before the court due to limited financial resources is evident in this case. This application for judicial review was adjourned and referred to case management partly in recognition of the fact that Mr. Brown was awaiting a decision on test case funding from Legal Aid Ontario. This funding was required to allow Mr. Brown to advance this application. There is no guarantee that this funding would be made available to potential individual litigants in the future.
[22] The frequent nature of detention review hearings also presents another obstacle to bringing these matters before the courts. Decisions to retain an immigration detainee often become moot once a subsequent hearing is held and decision rendered. Furthermore, the constitutionality of the IRPA provisions would only come before the court on a judicial review where the detainee, as was done here, expressly challenges the constitutionality of those provisions before the ID.
[23] I am also mindful of the fact that Mr. Brown has been removed from Canada, a situation that may well render the proceeding moot or possibly result in its abandonment should EDIN not be granted standing. Theoretically, there are other potential individual litigants in a position to place these issues before the courts however, as noted above, the practical obstacles these individuals face raise serious questions as to the likelihood of this occurring. I am of the view that granting EIDN standing will ensure a full presentation of the issues and allow the Court to consider the legality of the impugned provisions of the IRPA and their corresponding regulations under the IRPR […].
[38] For similar reasons, I exercise my discretion to decide the constitutional issues raised by this case, notwithstanding that it has likely become moot due to Mr. Brown’s removal to Jamaica.
B. Issue Estoppel [39] The Respondents say that Mr. Brown is estopped from advancing his Charter arguments in this Court because they have been previously and finally determined by the Ontario Superior Court of Justice in Brown (ONSC) (citing Danyluk v Ainsworth Technologies Inc, 2001 SCC 44 at para 25 [Danyluk]; Toronto (City) v CUPE, Local 79, 2003 SCC 63 at para 23 [Toronto (City)]).
[40] In Danyluk, the Supreme Court of Canada explained the doctrine of issue estoppel as follows:
[24] Issue estoppel was more particularly defined by Middleton J.A. of the Ontario Court of Appeal in McIntosh v. Parent, [1924] 4 D.L.R. 420, at p. 422:
When a question is litigated, the judgment of the Court is a final determination as between the parties and their privies. Any right, question, or fact distinctly put in issue and directly determined by a Court of competent jurisdiction as a ground of recovery, or as an answer to a claim set up, cannot be re-tried in a subsequent suit between the same parties or their privies, though for a different cause of action. The right, question, or fact, once determined, must, as between them, be taken to be conclusively established so long as the judgment remains. [Emphasis in original.]
[41] Issue estoppel arises when the following preconditions are met (Danyluk at para 25; Toronto (City) at para 23): (a) the issue must be the same as the one decided in the prior decision; (b) the prior judicial decision must have been final; and (c) the parties to both proceedings must be the same, or their privies.
[42] Mr. Brown concedes that the second and third preconditions are met, although he notes that the decision of the Ontario Superior Court of Justice has been appealed. However, he disputes that the issues decided in Brown (ONSC) were the same as those raised in this application for judicial review. According to Mr. Brown, the case before the Ontario Superior Court of Justice proceeded on the assumption that the legislative regime was constitutional, and concerned only whether it was applied to Mr. Brown in a manner that violated his Charter rights.
[43] I am not persuaded that Justice O’Marra approached the issues in exactly the manner suggested by Mr. Brown. Indeed, his judgment includes an explicit finding that the legislative regime governing pre-removal immigration detention is constitutional:
[99] Here, there was a statutory basis for Mr. Brown’s detention pursuant to a process that afforded due process, and an appellate review. The immigration detention review regime provides the protection that fundamental justice requires in the circumstances. There is a mechanism for periodic ongoing reviews of his detention. In Charkaoui v. Canada (MCI), 2007 1 S.C.R. 350 at pp. 374 and 408 to 411 and Sahin v. Canada (MCI), [1995] 1 FCR 214 it has been held that the IRPA detention review scheme meets the standards for a constitutionally compliant detention review scheme.
[44] Justice O’Marra’s consideration of Mr. Brown’s rights under ss 9 and 12 of the Charter was more case-specific, and did not directly address the constitutionality of the legislative regime as a whole.
[45] Mr. Brown points out that he did not seek a remedy under s 52 of the Charter in his application for habeas corpus, but only a remedy under s 24(1). He suggests that the broader remedy contemplated by s 52, namely a declaration that the applicable legislative regime is without force or effect, is not available in an application for habeas corpus. He has provided no authority for this proposition. I note that in PS v Ontario, 2014 ONCA 900 [PS], a case on which Mr. Brown relies, the Ontario Court of Appeal made a declaration under s 52 of the Charter in an appeal of a habeas corpus application.
[46] In any event, I accept that the relief Mr. Brown sought in the Ontario Superior Court of Justice was limited to damages under s 24(1) of the Charter. He requested only a declaration that his own Charter rights had been violated, not that the legislative regime was inherently unconstitutional.
[47] The constitutional challenge in this application for judicial review is therefore broader than the one that was before the Ontario Superior Court of Justice in Brown (ONSC). The issues have been comprehensively argued before this Court with the contribution of the EIDN, a third party that was granted public interest standing in light of the importance of the matters raised. Even if issue estoppel may be said to apply to some aspects of the positions advanced by Mr. Brown and the EIDN, the issues in this proceeding are not identical to those decided by Justice O’Marra.
[48] Furthermore, the Court retains discretion not to apply issue estoppel when this would work an injustice (Danyluk at paras 29-31). In this case, I am not persuaded that Mr. Brown should be prevented from seeking a declaration under s 52 of the Charter regarding ss 57 and 58 of the IRPA and ss 244 to 248 of the Regulations only because similar issues were dealt with by the Ontario Superior Court of Justice in an application for habeas corpus.
[49] Justice O’Marra’s conclusions may nevertheless be persuasive, and may have added force by virtue of the doctrine of comity.
C. Evidence (1) General Principles [50] A proper factual foundation must exist before measuring legislation against the provisions of the Charter, particularly where the effects of impugned legislation are the subject of the attack (Danson v Ontario (Attorney General), [1990] 2 SCR 1086 at para 26 [Danson]). A distinction must be drawn between two categories of facts in constitutional litigation: “adjudicative facts” and “legislative facts”.
[51] Adjudicative facts are those that concern the immediate parties. They are specific and must be proved by admissible evidence. Legislative facts are those that establish the purpose and background of legislation, including its social, economic and cultural context. Such facts are of a more general nature, and are subject to less stringent admissibility requirements (Danson at paras 27-28).
(2) Applicant and Third Party [52] Mr. Brown relies on the facts of his own case. He has also filed affidavits from experts in psychology and foreign law. The EIDN has submitted the affidavits of a number of former detainees and those close to them, together with the affidavits of some of its members and supporters, including a sociologist. The following summary, which is necessarily incomplete, encompasses the most salient facts and expert opinions.
(a) Aloxen Myers [53] Aloxen Myers came to Canada in May 2003. She is a single mother with two minor children. Ms. Myers was detained at the Vanier Centre for Women for a total of ten months. Despite having no criminal record, she was held in general population and subject to lockdowns and strip searches. Her children were placed in the care of the Children’s Aid Society while she was detained.
[54] Ms. Myers’ detention was reviewed by the ID on approximately 12 occasions. She says that each hearing lasted roughly ten minutes. In December 2014, she was released under the supervision of the Toronto Bail Program.
[55] Ms. Myers says that her detention has had a significant impact on her, and also on her children. Both children are undergoing therapy at SickKids Hospital. Ms. Myers has health problems that she attributes to poor diet, anxiety, and the stress of detention.
(b) Jennifer James [56] Jennifer James came to Canada in April 2009. She failed to report to the CBSA in December 2012, and a warrant was issued for her arrest. She was detained at the Toronto Immigration Holding Centre [TIHC] for approximately eight months on the ground that she was unlikely to appear for removal.
[57] Ms. James’ detention was reviewed by the ID on approximately ten occasions. She says each hearing lasted roughly ten minutes. She formed the impression that her continued detention was pre-determined. She had difficulty finding a suitable bondsperson. She was asked about her children at one hearing, but it did not change the outcome.
[58] Ms. James says that she noticed that detainees were sometimes transferred to provincial prisons for what she considered to be minor infractions, and so she became quiet and acquiescent. She was eventually released under the joint supervision of the Toronto Bail Program and her son’s teacher. She says that she experiences flashbacks and suffers from depression.
(c) Kyon Ferril [59] Kyon Ferril came to Canada in 1994 as a small child. In 2011, he was convicted for a series of offences he committed in 2007 and 2008, specifically four counts of robbery, three counts of use of an imitation firearm, and one count of attempt to commit an indictable offence. He received a sentence of nine years and two months.
[60] Following the completion of his criminal sentence, Mr. Ferril was transferred to immigration detention at the Central East Correctional Centre [CECC]. He was detained for approximately three years and two months as a flight risk and a danger to the public.
[61] Mr. Ferril’s detention was reviewed by the ID on approximately 40 occasions, often before the same member of the ID. The hearings were conducted by video link. He was represented by counsel approximately eight times. When he was not represented, the hearings concluded within five minutes. His expressions of remorse and evidence of rehabilitation were rejected by the ID. He says that as an immigration detainee, he had little or no access to rehabilitation programs and services.
[62] Mr. Ferril says that he experienced more than 1,000 lockdowns between October 2013 and December 2016. This caused him frustration and further isolation. He alleges that his detention reviews did not always take place within the statutorily-mandated timeframe.
[63] According to Mr. Ferril, he was often the target of homophobic aggression and violence by other prisoners, guards and the CBSA. In March 2015, he was attacked in the day room by a group of prisoners and badly beaten until guards intervened. He was attacked again by the same individuals later that day, and defended himself with a sock filled with dominoes. This resulted in a charge of assault with a dangerous weapon. He was held in segregation and then transferred from immigration detention to criminal remand.
[64] Mr. Ferril says that a second violent attack in September 2016 nearly killed him. He alleges that his recovery was frustrated by a lack of adequate medical care. He was held in segregation at least three times, primarily out of concern for his safety. He was eventually released under the joint supervision of his brother and his common law partner, under the auspices of the Toronto Bail Program.
(d) Oluwayanmife Oluwakotanmi [65] Oluwayanmife Oluwakotanmi was smuggled into the United States with his parents when he was eight years old. He lived and worked without status until he came to Canada. He was detained at the TIHC, then at the Maplehurst Correctional Centre [MCC], and then at the CECC. Mr. Oluwakotanmi was detained for approximately eleven months on the ground that he was unlikely to appear for removal.
[66] Mr. Oluwakotanmi has a criminal record in the United States. While he was working as a taxi driver, he was involved in a collision that resulted in the death of his passenger. He was convicted of reckless homicide and sentenced to 30 months’ probation. He came to Canada without completing his sentence.
[67] Mr. Oluwakotanmi made a refugee claim in Canada using a false name. His claim was rejected. He failed to appear for a pre-removal interview, and remained in Canada for the next five years without status.
[68] In December 2015, Mr. Oluwakotanmi was assaulted in Brampton. He was not charged, but was turned over to the CBSA. After providing his fingerprints, he disclosed his real identity, his immigration history and his U.S. criminal record.
[69] Mr. Oluwakotanmi says that his detention at the CECC interfered with his ability to retain counsel. His partner found it difficult to visit him at the CECC because she did not possess a vehicle. Mr. Oluwakotanmi’s detention reviews were occasionally conducted by video link. He says that he sometimes felt he could not speak at his detention reviews, and when he did so, he felt it had no bearing on the ID’s decision.
[70] Mr. Oluwakotanmi had difficulty proposing alternatives to detention. His partner was his only close and consistent friend in Canada. According to Mr. Oluwakotanmi, his partner was not allowed to attend his detention reviews, nor was she accepted as a bondsperson. Mr. Oluwakotanmi was eventually released on November 30, 2016, when his counsel asked the MCC to contact the Toronto Bail Program.
(e) Kimora Adetunji [71] Kimora Adetunji is the wife of a man detained at the CECC. When she swore her affidavit, her husband had been detained for approximately eight months. She says that she suffers from sleeplessness and stress-induced, debilitating headaches. She is now a single parent, and is unable to keep up with bills and provide basic necessities for her children. The children have also felt the impact of their father’s absence. Ms. Adentunji has not been able to visit her husband, as she does not have access to a vehicle or childcare.
[72] Ms. Adetunji tried to attend her husband’s first detention reviews when he was detained at the MCC. She says that before one of the hearings, she overheard a conversation between the ID and the Hearings Officer regarding detainees who were unlikely to be released that day. This led her to conclude that the process was unfair, and that the decision was predetermined.
(f) Mina Ramos and Syed Hussan [73] Mina Ramos and Syed Hussan are volunteers with the EIDN. Their affidavits refer to a report published by EIDN in 2014, “Indefinite, Arbitrary and Unfair: the Truth About Immigration Detention in Canada”, which analysed data obtained under the Access to Information Act, RSC 1985, c A-1. According to Ms. Ramos and Mr. Hussan, the data show that rates of detention or release vary widely depending on the region or the ID member, and the chances of release diminish as the length of detention increases, becoming negligible after six months of detention. The report also cites evidence suggesting that the ID unduly relies upon, or simply duplicates, past decisions. An internal memorandum from a former Chair of the IRB states that the ID’s reasons lack consistency and detail, and essentially reiterate the decision of the previous member.
(g) Caileigh McKnight [74] Caileigh McKnight is a member of the EIDN. Her affidavit was submitted in support of the EIDN’s motion to be added as a third party in this application for judicial review. Ms. McKnight describes the activities of the EIDN and the services it offers to detainees. She recounts the experiences of detention and the review process as told to her by detainees. She attaches to her affidavit the following exhibits: (a) the EIDN 2014-2015 Annual Report; (b) the article titled “Indefinite, Arbitrary and Unfair: The Truth About Immigration Detention in Canada” published by the EIDN in 2014; (c) a selection of media articles; and (d) a selection of press releases issued by the EIDN.
(h) Ali Esnaashari [75] Ali Esnaashari is a lawyer practising immigration law in Toronto. He was called to the bar in June 2016. Mr. Esnaashari says that he has represented eleven individuals at detention reviews before the ID. Based on his experience, Mr. Esnaashari says it can be difficult to learn when a detention review is scheduled to take place, and they may be scheduled just one day in advance. He states that “[a]lthough hearing officers are often forthcoming with helping on files, they are scheduled to be in hearings during the day and are not available to discuss matters over the phone”. He says that a Hearings Officer may make a general assertion that an individual has been uncooperative without providing a comprehensive description of the surrounding circumstances. He notes that generally he is not advised if a client is transferred to a different detention facility, nor of the reasons for the transfer. He also maintains that the specific criteria used by the Toronto Bail Program for accepting detainees are unclear, and finding a suitable bondsperson is often difficult or impossible.
[76] According to Mr. Esnaashari, during a detention review, the ID will usually provide preliminary comments and the Hearings Officer will then read from notes derived from a variety of documents. He says that almost none of the documents are disclosed prior to the hearing to the detainee or counsel, nor are they provided during the hearing. At the TIHC, he may ask for a brief break to discuss matters with his client. However, he says that privacy is non-existent at provincial correctional facilities. Due to security concerns, he is not permitted to step out into the hallway to speak with his client. The ID can only permit him to speak with his client off the record, in front of all participants.
(i) Hanna Gros [77] Hanna Gros is a recent law school graduate and a Senior Fellow of the International Human Rights Program [IHRP] at the University of Toronto’s Faculty of Law. Ms. Gros attaches to her affidavit a report titled “‘We Have No Rights’: Arbitrary imprisonment and cruel treatment of migrants with mental health issues in Canada” published by the IHRP in 2015. The report is based on a variety of sources, including interviews with seven detainees. The report’s conclusions include that: (a) detention has a negative impact on the mental health of individuals; (b) individuals feel disempowered by the experience of detention reviews; (c) the legislative scheme does not address mental health issues; (d) despite the regular occurrence of detention reviews, there is “no presumption in favour of release after a certain period of time, and detention can continue for years”; and (e) support and treatment in provincial correctional facilities for mental health issues is inadequate.
(j) Janet Cleveland [78] Janet Cleveland is a clinical psychologist and a researcher affiliated with McGill University. Between 2010 and 2013, she examined the impact of detention in Canadian immigration holding centres on the mental health of asylum-seekers. Dr. Cleveland addresses the psychological impact of long-term detention on: (a) persons with no prior history of mental health issues; (b) persons with pre-existing mental health issues; and (c) persons with profiles comparable to that of Mr. Brown.
[79] According to Dr. Cleveland, detention tends to exacerbate existing mental health issues, or create them where they did not previously exist. Detention for more than six months can lead to feelings of “despair, hopelessness, and anxiety about the outcome of immigration proceedings”. She says that six months is the “breaking point”, after which an individual is “likely to suffer long-term, and perhaps permanent, mental health impairment”. Dr. Cleveland concludes that “Mr. Brown has virtually all the risk factors that are associated with persistent severe mental illness, suicide and victimization among male prison inmates”.
(k) Gerald Devins [80] Gerald Devins is a clinical psychologist. He has practised since 1992, and has performed psychological assessments of more than 5,200 refugee claimants. He conducted a psychological assessment of Mr. Brown based on a single interview. According to Dr. Devins, Mr. Brown “satisfies diagnostic criteria for schizoaffective disorder, depressive type” and has “paranoid delusions and dissociative symptoms”. Dr. Devins states that “Mr. Brown’s psychopathology renders it impossible for him to appreciate fully the nature of legal proceedings”. Dr. Devins makes the following observation:
Existing evidence indicates that the prognosis for major mental illnesses, such as schizophrenia, is poorer when people are detained in prison as compared to when they can access needed treatments and resources in the community. This is especially true when the clinical picture is complicated by addictions. Mr. Brown requires intensive, comprehensive care that includes expert pharmacotherapy, ongoing supportive therapy, and treatment for his addictions, such as can be accessed in the community. His mental health will benefit significantly if he can obtain such treatment and receive the support required to adhere to it. The likelihood of meaningful and durable improvement is much lower without the benefit of such comprehensive treatment and support.
(l) Lesley Wood [81] Lesley Wood is Associate Professor of Sociology at York University in Toronto. Her research focuses on the analysis of qualitative and quantitative data.
[82] Dr. Wood performed an analysis of statistical data provided by the IRB in response to requests under the Access to Information Act. Dr. Wood examined “the linear regression and bivariate correlations on the effect of the region, board member and time in detention on an individual’s likelihood of release.”
[83] Dr. Wood makes the following observations: (a) as the number of days in detention increase, there is a significant negative correlation with release; (b) the likelihood of release is affected by the ID member hearing the case; (c) in 2013, the release rate was 27% in the Western Region, 9% in the Central Region, and 24% in the Eastern Region; and (d) release rates declined between 2008 and 2013. Dr. Wood provides the following disclaimer:
Although the sample is consistent, the numbers are not large and there is missing data, these figures offer us a strong sense of the variation in detention by Board Member, by region, and through time […]. While I recognize that there may be competing explanations for these variations, I am confident that they provide solid evidence that detention times and release rates depend not only on the merits of a particular case but are tied to the Board Member, the amount of time in custody, and the region the detainee is in custody.
(m) Galina Cornelisse [84] Galina Cornelisse is Assistant Professor, European and International law, at VU University Amsterdam. Dr. Cornelisse discusses the law of the European Union governing detentions for the purpose of removal, with an emphasis on circumstances where removal is delayed or not possible.
[85] Dr. Cornelisse offers the following conclusion:
With specific regard to the question whether EU law permits detention under the Return Directive when removal is delayed or not possible, we may accordingly conclude the following: There must be a reasonable prospect of removal within the maximum length of detention. In principle this period consists of six months, which can be prolonged only when the removal process is expected to take longer because of lack of cooperation of the third-country national or because of delays in getting the necessary documents. Other reasons for extending the six-month period do not exist. Thus, if removal is for example postponed because of a danger of non-refoulement, and it is reasonable to expect that such a risk will stil