Brown v. Canada (Citizenship and Immigration)

Brown v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court of Appeal Decisions
Date
2020-08-07
Neutral citation
2020 FCA 130
File numbers
A-274-17, A-282-17
Notes
Reported Decision
Decision Content
Date: 20200807
Dockets: A-274-17
A-282-17
Citation: 2020 FCA 130
CORAM:
GAUTHIER J.A.
STRATAS J.A.
RENNIE J.A.
BETWEEN:
ALVIN BROWN and
END IMMIGRATION DETENTION NETWORK
Appellants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION and
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
and
CANADIAN ASSOCIATION OF REFUGEE LAWYERS and
CANADIAN CENTRE FOR INTERNATIONAL JUSTICE
Interveners
Heard at Toronto, Ontario, on February 26 and 27, 2019.
Judgment delivered at Ottawa, Ontario, on August 7, 2020.
REASONS FOR JUDGMENT BY:
RENNIE J.A.
CONCURRED IN BY:
GAUTHIER J.A.
STRATAS J.A.
Date: 20200807
Dockets: A-274-17
A-282-17
Citation: 2020 FCA 130
CORAM:
GAUTHIER J.A.
STRATAS J.A.
RENNIE J.A.
BETWEEN:
ALVIN BROWN and
END IMMIGRATION DETENTION NETWORK
Appellants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION and
MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
and
CANADIAN ASSOCIATION OF REFUGEE LAWYERS and
CANADIAN CENTRE FOR INTERNATIONAL JUSTICE
Interveners
REASONS FOR JUDGMENT
TABLE OF CONTENTS
En
Blank/En blanc
Para.
I. Overview
1
II. The detention provisions of the IRPA comply with sections 7 and 9 of the Charter
28
III. Limitations on the power of detention
40
(a) Jordan distinguished
48
(b) Other jurisdictions and international law
54
(c) Conclusion on sections 7 and 9
60
IV. Discretion and constitutionality
61
V. A detention review hearing that complies with the Charter and administrative law
89
(a) The nexus to an immigration purpose
90
(b) Section 12
103
(c) The legal burden
118
(d) The relevance of previous detention decisions
130
(e) Procedural fairness
136
VI. Judicial oversight
150
VII. Conclusion
162
RENNIE J.A.
I. Overview
[1] Enforcement of removal orders by the Canada Border Services Agency (CBSA) is an everyday occurrence in this country. In most cases, removal proceeds in an expeditious manner. But sometimes it does not. The person to be removed may not report. The receiving country may delay or refuse to issue the necessary travel documents. Sometimes the political situation in the receiving country is unstable, or removal carries an unacceptable risk of human rights violations. Significant delays can result, placing the person subject to removal in an administrative and legal limbo. The person has no right to remain in Canada but Canada has no ability to effect the removal.
[2] For certain foreign nationals, there may also be reasonable grounds to believe that they pose a danger to the public or are a flight risk and may not report to the CBSA for removal. In such cases, the Immigration Division (ID) of the Immigration and Refugee Board of Canada may order their arrest and detention pending removal (Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 55 (IRPA)).
[3] Over the course of a year, over 5,000 persons, inadmissible to Canada for various reasons, are held in immigration detention, either in immigration holding centres operated by the CBSA or in provincial correctional institutions. The vast majority of detentions are of short or intermittent duration—far less than 100 days. But some detainees are held for much longer. The appellant, Alvin John Brown, is an example of the latter.
[4] The Federal Court has described the facts surrounding Mr. Brown’s stay in Canada and eventual removal (2017 FC 710, per Fothergill J. at paras. 9-18). He was found to be inadmissible to Canada on the basis of 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. Notwithstanding the increasing length of Mr. Brown’s detention, at each of his subsequent detention reviews the ID ordered that he continue to be detained.
[5] Mr. Brown was held in provincial correctional institutions in Ontario from September 2011 until his deportation to Jamaica five years later in September 2016. Despite repeated and continuous efforts, the CBSA was unable to obtain a travel document for Mr. Brown from the Jamaican High Commission during this time.
[6] In the Federal Court, Mr. Brown, together with the End Immigration Detention Network, a third party with public interest standing, challenged the constitutionality of the immigration detention regime established under sections 57 and 58 of the IRPA and sections 244 to 248 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 (Regulations). There, they contended that the regime violates sections 7, 9, 12 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
[7] Although Mr. Brown had been removed from Canada by the time of the hearing, no one asserted the objection of mootness. Nevertheless, the Federal Court considered mootness and, after reviewing the jurisprudence, exercised its discretion to hear the application in the public interest. No one raised mootness in this Court and there is no reason on this record to second-guess the Federal Court’s exercise of discretion.
[8] The Federal Court dismissed the appellants’ Charter challenge. They now appeal to this Court on the basis of the following certified question:
Does the [Charter] impose a requirement that detention for immigration purposes not exceed a prescribed period of time, after which it is presumptively unconstitutional, or a maximum period, after which release is mandatory?
[9] Once a question is certified, all issues that bear upon the disposition of the appeal are at large (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 at para. 12 (Baker); Mahjoub v. Canada (Minister of Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R. 344 at para. 50; Lewis v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 130, [2018] 2 F.C.R. 229 at para. 37).
[10] In this Court, the appellants renew their constitutional challenge. They are supported by two interveners: the Canadian Association of Refugee Lawyers and the Canadian Centre for International Justice. The interveners advocate for specific procedural protections for immigration detainees including mandatory release dates, early disclosure by the Minister of Public Safety of any evidence relevant to a detainee’s case, and the imposition of an onus on the Minister of Public Safety to establish, with strong supporting reasons, that continued detention is warranted.
[11] Casting a shadow on the appellants’ constitutional challenge is the Supreme Court of Canada decision, Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350 (Charkaoui). There, the Supreme Court prescribed the process and protections required to ensure that lengthy and indeterminate detention is consistent with detainees’ rights under sections 7 and 12 of the Charter.
[12] The Supreme Court’s conclusions in Charkaoui are set forth in paragraph 96:
The s. 12 issue of cruel and unusual treatment is intertwined with s. 7 considerations, since the indefiniteness of detention, as well as the psychological stress it may cause, is related to the mechanisms available to the detainee to regain liberty. It is not the detention itself, or even its length, that is objectionable. Detention itself is never pleasant, but it is only cruel and unusual in the legal sense if it violates accepted norms of treatment. Denying the means required by the principles of fundamental justice to challenge a detention may render the detention arbitrarily indefinite and support the argument that it is cruel or unusual […]
[13] Elsewhere, at paragraph 105 of Charkaoui, the Supreme Court recognized that immigration detention may have to be or may practically end up being indeterminate: “[i]t is thus clear that while the IRPA in principle imposes detention only pending deportation, it may in fact permit lengthy and indeterminate detention or lengthy periods subject to onerous release conditions.” It rejected the detainee’s argument that after 5 years his detention had become indefinite and, thus, unconstitutional for that reason.
[14] The Supreme Court held that extended periods of detention under the IRPA do not violate the Charter if they are accompanied by regular review of the reasons for detention, the length of detention, the reasons for the delay in removal, the anticipated future length of detention and the availability of alternatives to detention such as release on conditions (at paras. 110-117).
[15] But the Supreme Court also foresaw that cases could arise where a particular detention was not Charter compliant. In these circumstances, the Court concluded that, although prolonged detention under the regime established by the IRPA was constitutional, “[…] this does not preclude the possibility of a judge concluding at a certain point that a particular detention constitutes cruel and unusual treatment or is inconsistent with the principles of fundamental justice, and therefore infringes the Charter in a manner that is remediable under s. 24(1) of the Charter” (at para. 123).
[16] Charkaoui stands in the way of the appellants’ argument that lengthy or indeterminate detention is per se unconstitutional. In response, the appellants launch a frontal attack on Charkaoui.
[17] The appellants contend that where removal is no longer reasonably foreseeable, release is the only constitutionally compliant outcome, and the failure of the IRPA to expressly require release “in these circumstances” renders the scheme constitutionally deficient. Analogizing to the principles expressed in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 (Jordan) the appellants contend that their section 7 and 9 Charter rights can only be protected by judicially mandated limits on the length of detention or, alternatively, that the scheme should be declared unconstitutional under section 52. They say that Charkaoui must be read in light of the principles expressed in Jordan.
[18] The appellants advance a second attack on the detention scheme. The appellants say the fact that the legislation grants a discretionary power that may be exercised in an unconstitutional manner renders the enabling provision unconstitutional. The appellants contend that for the detention provisions of the IRPA to pass constitutional muster, it must be impossible for the ID to order detention when there is no reasonable prospect of removal.
[19] The appellants and interveners also argue that the detention scheme offends section 7 of the Charter because it places an onus on detainees to justify why they should be released. As well, the appellants and interveners challenge the constitutionality of detention orders under section 12 of the Charter because the ID has no control over the location and conditions of detention. They also raise a procedural fairness challenge based on the limited disclosure by the Minister during detention hearings.
[20] The arguments challenging the detention scheme fail and so I would dismiss the appeal. However, as will be seen, ID members conducting detention reviews and judges sitting in judicial review, must consider Charter and administrative law standards. Although the appellants’ challenge to the validity of the sections fails, many of their arguments are vindicated by what is said in these reasons concerning what judges conducting detention reviews must consider.
[21] All Charter analysis begins with an informed understanding of the legislation in question. The legislation must first be interpreted according to the accepted principles of statutory interpretation (Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 26; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193 at para. 21). And in examining the effects of the legislation, as is necessary when applying the Charter, we must understand how it operates against the backdrop of accepted common law and administrative law principles (see, e.g., Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, 125 D.L.R. (4th) 385 at 1049; R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555 at paras. 43-45; R. v. Levkovic, 2013 SCC 25, [2013] 2 S.C.R. 204 at para. 78; Ruth Sullivan, Statutory Interpretation, 3rd ed. (Toronto: Irwin Law, 2016) at 315).
[22] When the detention provisions are read in light of their text, context and purpose, there is no infringement of sections 7, 9 or 12 of the Charter. The detention scheme possesses the same hallmarks of constitutionality that allowed the Supreme Court in Charkaoui to find that extended periods of detention under the IRPA’s security certificate detention scheme did not contravene sections 7 and 12 of the Charter. These hallmarks include robust and timely review of the continued need for detention, the ability to “consider terms and conditions that would neutralize the danger” and the “fashion[ing 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 exists (Charkaoui at paras. 117, 119-123).
[23] Charkaoui is also clear guidance from the Supreme Court, along with many other leading authorities, that the recourse against an improper exercise of discretion resulting in the over-holding of a detainee is an application to quash that exercise of discretion under administrative law principles and section 24 of the Charter, not to strike down the section under section 52 of the Constitution Act, 1982.
[24] Two opening observations are in order.
[25] First, this appeal involves nothing more than applying settled principles to specific legislation and a specific evidentiary record. There is no real dispute between the parties on the settled principles. Thus, I will not elaborate on either the general content of section 7 (see, e.g., Tapambwa v. Canada (Citizenship and Immigration), 2019 FCA 34, 69 Imm. L.R. (4th) 297 at paras. 76-90; Kreishan v. Canada (Citizenship and Immigration), 2019 FCA 223, 438 D.L.R. (4th) 148 at paras. 78-87) or the two-stage process to be followed when applying section 7 (Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165 at para. 68 and Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 at para. 58). It is sufficient to say that Mr. Brown’s Charter rights are engaged, and that as a foreign national in Canada he has standing to challenge this legislative scheme using sections 7, 9 and 12 of the Charter (Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, 17 D.L.R. (4th) 422 at 201-202; see also R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754 at para. 23 (Appulonappa)). Nor is there any dispute over the scope and content of sections 7, 9 and 12.
[26] The second observation relates to the Supreme Court decision in Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, 433 D.L.R. (4th) 381 (Chhina), rendered while this appeal was under reserve and on which the parties made additional written submissions. A comment is required on the relevance of Chhina to the issues in this appeal.
[27] The constitutionality of the immigration detention scheme was not in issue before the Supreme Court in Chhina. The focus of that case was the availability of habeas corpus as an alternative remedy to judicial review to determine the legality of a detention order. The case did not require a full interpretation of the IRPA detention provisions and none was done. The questions raised here have not been answered. Nor did the Supreme Court in Chhina reverse or cast any doubt on Charkaoui, which directly applies to the question before this Court.
II. The detention provisions of the IRPA comply with sections 7 and 9 of the Charter
[28] Under sections 34 to 37 of the IRPA, a foreign national may be inadmissible and liable to removal on grounds of security, a violation of human or international rights, serious criminality or organized criminality. Unless the removal order is stayed by the Federal Court, the foreign national against whom it is made “must leave Canada immediately and the order must be enforced as soon as possible” (IRPA, s. 48(2)).
[29] Under subsection 55(1), the ID may issue a warrant for the arrest and detention of a foreign national where there are reasonable grounds to believe they are inadmissible and pose a danger to the public or are a flight risk. No warrant is required for foreign nationals that are not protected persons, as defined under subsection 95(2) of the IRPA, and are a danger to the public or a flight risk, or whose identity cannot be confirmed (IRPA, s. 55(2)).
[30] Within 48 hours of arrest, or otherwise without delay, the ID is required to review the reasons for detention advanced by the Minister responsible for the CBSA, the Minister of Public Safety (IRPA, s. 57(1)). If the ID concludes that a detention order is appropriate, a second review must take place within the following seven days, and then again, if necessary, within every subsequent 30-day period (IRPA, s. 57(2)).
[31] Subsection 58(1) stipulates that grounds for detention may exist in five circumstances:
Release — Immigration Division
58. (1) The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that
(a) they are a danger to the public;
(b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2);
(c) the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security, violating human or international rights, serious criminality, criminality or organized criminality;
(d) the Minister is of the opinion that the identity of the foreign national — other than a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question — has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity; or
(e) the Minister is of the opinion that the identity of the foreign national who is a designated foreign national and who was 16 years of age or older on the day of the arrival that is the subject of the designation in question has not been established.
Mise en liberté par la Section de l’immigration
58. (1) La section prononce la mise en liberté du résident permanent ou de l’étranger, sauf sur preuve, compte tenu des critères réglementaires, de tel des faits suivants :
a) le résident permanent ou l’étranger constitue un danger pour la sécurité publique;
b) le résident permanent ou l’étranger se soustraira vraisemblablement au contrôle, à l’enquête ou au renvoi, ou à la procédure pouvant mener à la prise par le ministre d’une mesure de renvoi en vertu du paragraphe 44(2);
c) le ministre prend les mesures voulues pour enquêter sur les motifs raisonnables de soupçonner que le résident permanent ou l’étranger est interdit de territoire pour raison de sécurité, pour atteinte aux droits humains ou internationaux ou pour grande criminalité, criminalité ou criminalité organisée;
d) dans le cas où le ministre estime que l’identité de l’étranger — autre qu’un étranger désigné qui était âgé de seize ans ou plus à la date de l’arrivée visée par la désignation en cause — n’a pas été prouvée mais peut l’être, soit l’étranger n’a pas raisonnablement coopéré en fournissant au ministre des renseignements utiles à cette fin, soit ce dernier fait des efforts valables pour établir l’identité de l’étranger;
e) le ministre estime que l’identité de l’étranger qui est un étranger désigné et qui était âgé de seize ans ou plus à la date de l’arrivée visée par la désignation en cause n’a pas été prouvée.
[32] The language of Parliament in subsection 58(1) is clear and the context and purpose of section 58 does not change the plain meaning of that language. Under subsection 58(1), detention must cease unless the ID is satisfied, on a balance of probabilities, that a ground for detention exists. If a ground for detention is not established, the inquiry is at an end. Release is the default.
[33] But detention does not simply follow on proof of a ground for detention. Section 248 of the Regulations makes this clear. Before a detention order is made, the ID must proceed to the second stage and examine whether detention is warranted based on certain prescribed factors (see also Sasha Baglay & Martin Jones, Refugee Law, 2nd ed. (Toronto, ON: Irwin Law, 2017) at 389). The prescribed factors are as follows:
Other factors
248. If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release:
(a) the reason for detention;
(b) the length of time in detention;
(c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time;
(d) any unexplained delays or unexplained lack of diligence caused by the Department, the Canada Border Services Agency or the person concerned;
(e) the existence of alternatives to detention; and
(f) the best interests of a directly affected child who is under 18 years of age.
Autres critères
248. S’il est constaté qu’il existe des motifs de détention, les critères ci-après doivent être pris en compte avant qu’une décision ne soit prise quant à la détention ou la mise en liberté :
a) le motif de la détention;
b) la durée de la détention;
c) l’existence d’éléments permettant l’évaluation de la durée probable de la détention et, dans l’affirmative, cette période de temps;
d) les retards inexpliqués ou le manque inexpliqué de diligence de la part du ministère, de l’Agence des services frontaliers du Canada ou de l’intéressé;
e) l’existence de solutions de rechange à la détention;
f) l’intérêt supérieur de tout enfant de moins de dix-huit ans directement touché.
[34] These factors were first articulated by Rothstein J., then of the Federal Court, in Sahin v. Canada (Minister of Citizenship & Immigration) (1994), [1995] 1 F.C. 214, 5 Imm. L.R. (3d) 159 (Fed. T.D.) at 231 (Sahin). They were subsequently given legislative expression in section 248 of the Regulations, which came into force in 2002 (S.O.R./2002-227).
[35] In considering alternatives to detention, the ID may impose any conditions on the detainee that it considers necessary to mitigate the risks (IRPA, s. 58(3)). Either the Minister or the detainee may subsequently apply to vary these conditions on the basis that they are no longer necessary to ensure compliance.
[36] If the ID orders detention, the detainee is remitted to the custody of the CBSA. The CBSA may decide to place the detainee in an Immigration Holding Centre (IHC), or transfer the detainee to provincial authorities to be housed in a provincial correctional institution. The ID has no control over the privileges a detainee has access to while detained. If a detainee is dissatisfied with the conditions of their detention, they can bring a judicial review application in the Federal Court, if housed in a federal institution, or, if in a provincial institution, in the provincial superior court using legislation such as the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
[37] It is clear from this review that the immigration detention scheme has all of the protections mandated by Charkaoui to ensure that extended periods of detention do not violate sections 7, 9 and 12 of the Charter. Detention reviews are timely and frequent: subsection 57(2) of the IRPA requires that detention be reviewed within 48 hours of arrest, within seven days after that, and every 30 days for the detention’s duration. The onus is on the Minister to establish both a ground of detention and that detention is warranted based on mandatory, case-specific factors. Detention may only be ordered where there are no appropriate alternatives, and, in considering alternatives to detention, subsection 58(3) authorizes the ID to impose any conditions that it considers necessary to neutralize the risk associated with release. The legality of the detention is subject to judicial scrutiny in the Federal Court.
[38] The Supreme Court has recently suggested in obiter in Chhina (at para. 60) that the factors under section 248 of the Regulation may be deficient or vague because they do not expressly require release if removal is not foreseeable. This obiter statement, made in passing, does not repeal the central holding of the Supreme Court in Charkaoui, namely that an ongoing detention does not automatically run afoul of the Charter. In Charkaoui, the section 248 factors formed the heart of the issue before the Court. It would be startling if some idle words in Chhina displaced the detailed, well-considered and necessary holding in Charkaoui, almost as if by a side-wind.
[39] Nevertheless, the appellants say that the legislation does not go far enough. They note that the IRPA is constitutionally flawed in that does not expressly say that there can be no detention in the absence of a reasonably foreseeable prospect of removal and does not impose a maximum period of time during which a person can be detained. For the reasons that follow, these arguments fail.
III. Limitations on the power of detention
[40] A statutory power, such as the power to detain in this case, can only be used for the purposes for which it was intended. This principle of administrative law stems from the requirement that all government action must be authorized by a grant of legal authority. Whether express or implied, the text of a statute, seen in light of its context and purpose, prescribes the limits of the legal authority of a decision-maker exercising discretionary power (Brown and Evans, Judicial Review of Administrative Action in Canada, (Toronto: Thomson Reuters, 2019) at § 15:2241; Entertainment Software Assoc. v. Society Composers, 2020 FCA 100 at para. 88 (Entertainment Software Assoc.) and cases cited therein). The classic statement of this principle is found in Roncarelli v. Duplessis, [1959] S.C.R. 121, 16 D.L.R. (2d) 689 (Roncarelli) where Rand J. said (at 140):
In public regulation of this sort there is no such thing as absolute and untrammelled ‘discretion’, that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute.[...][T]here is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption.
[41] Citing Roncarelli, the Supreme Court in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1 observed (at para. 108) (Vavilov):
[…] while an administrative body may have considerable discretion in making a particular decision, that decision must ultimately comply "with the rationale and purview of the statutory scheme under which it is adopted": Catalyst […]. Likewise, a decision must comport with any more specific constraints imposed by the governing legislative scheme, such as the statutory definitions, principles or formulas that prescribe the exercise of a discretion: see Montréal (City), at paras. 33 and 40-41; Canada (Attorney General) v. Almon Equipment Ltd., 2010 FCA 193, [2011] 4 F.C.R. 203 (F.C.A.), at paras. 38-40.
[42] The IRPA has many purposes and objectives, including ensuring the safety and security of Canadians and the promotion of international justice by denying safe harbour for criminals or those who pose a security risk (IRPA, paras. 3(1)(h), (i)). The power to detain, as set out in subsection 58(1), is one of the mechanisms by which those purposes are realized. That detention can only be ordered where it is linked, on the evidence, to one of the enumerated grounds listed in subsection 58(1) is an application of this principle. The power to detain must always remain tethered to the IRPA’s purposes and objectives.
[43] The implicit requirement that the power to detain can only be exercised where it facilitates the purposes of the IRPA has guided the IRPA’s interpretation for decades. In Sahin at 226-229, Rothstein J. drew on R. v. Governor of Durham Prison, Ex parte Singh, [1984] 1 All E.R. 983, [1984] 1 W.L.R. 704 (Q.B.). There, in considering the immigration detention power provided by the Immigration Act, 1971, Woolf J. (as he then was) concluded that the Act was subject to two implicit limitations: the power to detain was limited to the purposes of removal and the responsible minister must move “with all reasonable expedition” to ensure removal.
[44] Section 58 of the IRPA authorizes detention for several purposes, including pending determination of identity, pending a determination of admissibility or on the grounds of public safety. The power of detention will be exercised principally, but not exclusively, pending removal. Where detention is for the purposes of removal, and there is no longer a possibility of removal, detention on this ground no longer facilitates the machinery of immigration control and the power of detention cannot be exercised. Detention must always be tethered, on the evidence, to an enumerated statutory purpose. To conclude, the IRPA is not constitutionally deficient because it does not state expressly that which the law already requires.
[45] This conclusion is not altered by the Charter.
[46] Interwoven with the modern approach to the interpretation of legislation is the presumption that Parliament intends to enact legislation in conformity with the Charter. If a legislative provision can be read both in a way that is constitutional and in a way that is not, the former reading should be adopted (Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, 59 D.L.R. (4th) 416 at 1078 (Slaight); R. v. Swain, [1991] 1 S.C.R. 933, 125 N.R. 1 at 1010; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, 93 D.L.R. (4th) 36 at 660; R. v. Lucas, [1998] 1 S.C.R. 439, 157 D.L.R. (4th) 423 at para. 66).
[47] The presumption of compliance is that “the legislature intends to make legislation that complies with the constitution, and to the extent possible legislation is therefore interpreted to achieve that result” [emphasis in original] (Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: Lexis Nexis, 2014) 523, at § 16.3 (Sullivan on the Construction of Statutes)). This principle is engrained in Supreme Court of Canada jurisprudence dating back over half a century (see McKay et al. v. The Queen, [1965] S.C.R. 798, 53 D.L.R. (2d) 532 at 803-804). In R. v. Sharpe, 2001 SCC 2, [2001] S.C.R. 45 at para. 33, McLachlin C.J.C. confirmed the presumption’s application in situations where Charter rights are implicated. More recently, the Supreme Court has said that the detention provisions of the IRPA, the very legislation in question here, ought to be interpreted “harmoniously with the Charter values that shape the contours of its application” (Chhina at para. 128, Abella J., dissenting but not on this point).
(a) Jordan distinguished
[48] Nevertheless, the appellants and interveners contend that the Supreme Court has changed the law in the relatively recent, post-Charkaoui decision of Jordan. They say that the Supreme Court has now recognized that in some situations maximum time limits must be imposed to ensure Charter compliance. Mr. Brown argues the appropriate maximum limit in detention is six months, while the End Immigration Detention Network argues that it is three months; after expiry of those limits, they say the detention is arbitrary and violates sections 7 and 9.
[49] Jordan does not alter the constitutional holdings in Charkaoui. It is not authority for the proposition that sections 7 and 9 of the Charter require fixed limits on detention.
[50] In Jordan, the Supreme Court established ceilings beyond which pre-trial delay becomes presumptively unreasonable under section 11(b) of the Charter. Beyond the ceiling, the burden shifts to the Crown to rebut the presumption of unreasonable delay based on exceptional circumstances. The ceiling was set at 18 months for offences tried in provincial court, and 30 months for those tried in the superior court or those tried in provincial court after a preliminary inquiry (Jordan at para. 105).
[51] The objective of the guidelines established in Jordan was to protect the constitutional right to trial within a reasonable time under section 11(b) of the Charter. But the considerations which prompted the Court to establish those guidelines contrast markedly with those surrounding immigration detention. As I will explain, the differences between the criminal justice system and that of immigration detention could not be greater.
[52] Together, the federal and provincial governments have complete control over almost every aspect of the criminal justice system and the variables that affect delay. The federal government has responsibility for substantive criminal law and criminal procedure via the Criminal Code, R.S.C. 1985, c. C-46. The construction of courtrooms, appointment of judges, staffing of provincial courts and prosecutors, and the resources available to police to organize disclosure are all within the legislative competence of either the federal or provincial governments.
[53] 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 (see, e.g., Canada (Public Safety and Emergency Preparedness) v. Rooney, 2016 FC 1097, [2017] 2 F.C.R. 375). 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. Each will have a different view of what constitutes a timely administrative response to requests for travel documents. Removal is dependent on the cooperation of the receiving state, which, for a myriad of reasons, may be reluctant to or incapable of issuing a travel document. Mr. Brown’s situation is a good example. In spite of various, often unanswered, entreaties on the part of the CBSA, it took the Jamaican government nearly five years to confirm Mr. Brown’s nationality and issue a travel document. With the document finally in hand, the CBSA deported Mr. Brown the next day.
(b) Other jurisdictions and international law
[54] The appellants rely on international law and the law of foreign jurisdictions to argue that a textual reading of the IRPA pertaining to immigration detention is inconsistent with basic international norms.
[55] There is a well-established presumption that, where possible, Canada’s domestic legislation should be interpreted to conform to international law (R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292 at para. 53 (Hape)). “Where possible” is a key qualifier (Entertainment Software Assoc. at paras. 76-92). Absent contrary indication, legislative provisions are also presumed to observe “the values and principles of customary and conventional international law” (Hape at para. 53; B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704 at para. 47; Sullivan on the Construction of Statutes at §18.6; see also de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655 at paras. 82–87 and Entertainment Software Assoc. at paras. 89-90).
[56] Therefore, both Canada’s international treaty obligations and the principles underlying international law can play a role in the interpretation of Canadian laws. This is reinforced by paragraph 3(3)(f) of the IRPA, which directs that the Act “is to be construed and applied in a manner that […] complies with international human rights instruments to which Canada is signatory.”
[57] There is, however, an important counterweight to these principles—the doctrine of Parliamentary supremacy. An unambiguous provision must be given effect even if it is contrary to Canada’s international obligations or international law (Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281 at para. 35; Schreiber v. Canada (Attorney General), 2002 SCC 62, [2002] 3 S.C.R. 269 at para. 50; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, 74 D.L.R. (4th) 449 at 1371; Gitxaala Nation v. Canada, 2015 FCA 73 at para. 16; Hape at para. 54; and see generally the comprehensive discussion in Entertainment Software Assoc. at paras. 76-92).
[58] There is no doubt as to the design, operation or effect of the detention provisions. The appellants have not identified ambiguities or duelling interpretations that would open the door to an interpretation most consistent with international law. Reduced to its essence, the appellants’ argument is simply that in some jurisdictions immigration detention is dealt with somewhat differently. Leaving section 1 of the Charter aside, in light of Parliament’s clear legislative choice as to the design of the immigration detention scheme, the practices or legislative frameworks of other jurisdictions are irrelevant.
[59] In any event, as the Federal Court concluded, the Canadian immigration detention scheme is consistent with that of the United Kingdom. The UK legislation does not mandate fixed periods of maximum detention but, as in section 248 of the Regulations, articulates a number of discretionary considerations relevant to whether a detention order should issue. Turning to the European Union, while the EU Return Directive does set a maximum period of detention of 18 months, member states are not required to comply with this limit where third country nationals are denied entry at a country’s border or where, like Mr. Brown, they are being returned following inadmissibility rulings arising from criminal convictions. The Ontario Court of Appeal, in hearing Mr. Brown’s habeas corpus application, did not find his arguments grounded in international law to be persuasive (Brown v. Canada (Public Safety), 2018 ONCA 14, 420 D.L.R. (4th) 124 at paras. 37-38).
(c) Conclusion on sections 7 and 9
[60] The immigration detention regime is constitutionally sound and does not infringe sections 7 or 9 of the Charter. No principle of statutory interpretation requires that, to ensure constitutionality, the legislature must state that which the law already requires. To require an express statement that the power of detention can only be exercised where there is a real possibility of removal would be to read in a redundancy. The statute books of our land would read very differently if, to ensure constitutionality, they had to codify all the applicable common law and constitutional law principles that frame the interpretation and understanding of legislation.
IV. Discretion and constitutionality
[61] The appellants advance an alternate argument. They contend that the question to be answered is not whether the legislation can be applied in a constitutionally sound manner, but rather whether the ID is empowered by the legislation to violate the detainees’ Charter rights. Put otherwise, because the discretion in section 248 is not expressly subordinated to the obligation to release in the face of an unreasonably lengthy detention or a removal