Photo credit: THE CANADIAN PRESS / Graham Hughes

 

By Molly Joeck

 

While COVID-19 has wreaked havoc around the world, killing hundreds of thousands of people and bringing the world’s economy to a screeching halt, the pandemic has done something refugee lawyers and migrant rights advocates in Canada had thus far failed to do: it has brought Canada’s population of immigration detainees to unprecedented lows. CTV reported on May 1st that the total number of immigration detainees in Canada fell from 333 to 127 between March 15 and April 28, a significant decrease in such a short period of time. While this drop in numbers is probably largely accounted for by the fact that Canada’s borders are largely closed, which has meant that the flow of detainable migrants entering Canada has screeched to a halt, anecdotal evidence from immigration and refugee lawyers suggests that there have also been efforts on the part of the Immigration Division and the Canada Border Services Agency to release migrants from detention wherever possible.

 

While migrant rights advocates may be feeling quietly hopeful about this development, the Federal Court has given us food for thought when it comes to the rights of migrant detainees. On March 25th, the Court rendered its decision in Canada (Public Safety and Emergency Preparedness) v Taino, 2020 FC 427. The Taino decision turned largely on the appropriateness of release conditions for an individual with a significant criminal history and a long-standing drug addiction, demonstrating a clear and understandable desire on the part of the Court to ensure that the release conditions in question provided sufficient oversight in addressing the underlying addiction and protecting the public.

 

However, in arriving at its ultimate conclusion, the Court conducted an analysis of the relevance of the enforceability of a removal order in the context of section 58 of the Immigration and Refugee Protection Act. While it is not yet clear how this portion of the decision will be interpreted going forward, it is important for immigration and refugee lawyers to be aware of it, and prepared to engage with the Court’s reasoning should the decision be relied upon in the context of detention review hearings before the Immigration Division.

 

What was Taino about?

 

In Taino, the Federal Court allowed an application for judicial review by the Minister of Public Safety and Emergency Preparedness of a decision of the Immigration Division ordering the release of a detainee, Mr. Taino. This kind of application is not an uncommon occurrence – in particular, many Vancouver immigration and refugee lawyers are well-versed in the particularities of litigation initiated by the Minister in response to release decisions from the Immigration Division. What makes Taino unique – and potentially worrisome – is the Federal Court’s reasoning around the grounds for detention.

 

The background to the case is key for purposes of understanding the nature of the Court’s ultimate conclusion in this regard.

 

Mr. Taino is a 23-year-old citizen of the Philippines who has been in Canada since age 12. He lost his permanent resident status in 2010 pursuant to a conviction for assault with a weapon, and in 2012, a deportation order was issued against him. He successfully appealed to the Immigration Appeal Division, but subsequently violated the stay of the deportation order.

Mr. Taino then filed an application for a pre-removal risk assessment, which concluded in April 2018 that he was at risk in the Philippines. The matter was then transferred to the Case Management Branch [CMB] of Immigration, Refugees and Citizenship Canada for a balancing of the risk he faces in the Philippines against the danger he poses to the Canadian public.

 

In December 2019, while a decision from the CMB was still outstanding, Mr. Taino was detained by the CBSA on the grounds that he posed a danger to the public and was unlikely to appear for removal.

 

On January 7, 2020, Mr. Taino received a positive decision on his PRRA application from the CMB. That is, the CMB found that the risk he faced in the Philippines was greater than the danger that he posed to the Canadian public. As a result, all removal arrangements screeched to a halt; Mr. Taino’s removable order had become unenforceable.

 

At Mr. Taino’s next detention review hearing, he argued for his release on the basis that his removal order had become unenforceable. On February 28th, the Immigration Division ordered his release, and the Minister filed an application for leave and judicial review of that decision, as well as a motion for a stay of release, to the Federal Court.

 

The Federal Court allowed the Minister’s stay motion and application for judicial review, thereby setting aside the release order and sending Mr. Taino back to the Immigration Division for his next 30-day detention review.

 

The reasoning of the Court in Taino

In addressing the legal significance of Mr. Taino’s unenforceable removal order, the Court relied heavily on two earlier decisions of the Federal Court in support of its reasoning: Canada (Public Safety and Emergency Preparedness) v Samuels2009 FC 1152 and Isse v Canada (Citizenship and Immigration)2011 FC 405. In both of those decisions, the Federal Court held that the fact that a removal order had been stayed, rendering it unenforceable, did not affect the validity of the grounds for detention.

 

While the Taino Court’s characterization of the holdings in Samuels and Issa is correct, it’s important to note that there have been significant shifts in the realm of immigration detention jurisprudence in the eleven years since Samuels and Issa were rendered. Most importantly, over the course of the past five years, as a result of various instances of troublingly prolonged instances of immigration detention, there have been multiple court decisions emphasizing the need for detention to be “hinged” to an immigration purpose. That is, while the IRPA sets out five grounds for detention at section 58, it is not sufficient for one of those grounds to be present in order for a noncitizen to be detained. In addition to one (or more) of those grounds, the detention of the individual in question must be in pursuit of an immigration purpose – usually removal from Canada, though an immigration purpose can also be found where a CBSA investigation is being conducted into, for example, a person’s identity or criminal record upon their arrival in Canada. While it may have always been true that an immigration purpose was necessary to justify detention, this principle was underemphasized in the trickle of immigration detention decisions that emerged from the Federal Court in the early aughts. However, as the use of immigration detention as an enforcement tool has increased, along with the number of detainees in Canada, there has been more litigation around immigration detention, and more opportunities for Canadian courts to scrutinize incidents of long-term detention and the underlying reasoning for given instances of detention.

 

The real shift came when a series of applications for habeas corpus were filed on behalf of immigration detainees in various provincial superior courts (mainly the Superior Court of Ontario), starting with the Chaudhury case in 2015. In Chaudhury, four applicants filed an application for habeas corpus, seeking their immediate release from immigration detention on the basis that their continued detention was unlawful. Their application was refused, but the Ontario Court of Appeal set aside the decision of the Superior Court, recognizing the right of immigration detainees to habeas corpus. In so doing, the OCA observed that “a detention cannot be justified if it is no longer reasonably necessary to further the machinery of immigration control. Where there is no reasonable prospect that the detention’s immigration-related purposes will be achieved within a reasonable time (with what is reasonable depending on the circumstances), a continued detention will violate the detainee’s s. 7 and 9 Charter rights and no longer be legal).” (para 81)

 

This statement was a powerful one, and other courts have echoed this reasoning in the years since Chaudhury was issued. In Brown, for example, Justice O’Marra of the Ontario Superior Court of Justice held that, “Even a lawful detention can become arbitrary where detention becomes ‘unhinged’ from its removal purpose and thus contravene s. 9.” (para 102)

 

In Ali, Justice Nordheimer, again of the Ontario Superior Court of Justice, held that:

 

“The onus remains on the Government to justify a continued detention.  In order to do so, the Government must establish that the continued detention remains hinged to the immigration purpose for which the detention was originally ordered.  To authorize the Government to hold a person indefinitely, solely on the basis of noncooperation, would be fundamentally inconsistent with the well-established principles underlying ss. 7 and 9 of the Charter.  It would also be contrary to Canada’s human rights obligations.” (para 27)

 

This reasoning quickly made its way from courts of inherent jurisdiction to the Federal Court, and in Brown v Canada, the Federal Court quoted Justice Nordheimer, holding that, “continued detention is proper only so long as it is necessary to further a legitimate immigration purpose.” (para 144)

This principle has become so well-established that it is now enshrined in the Immigration and Refugee Board’s Chairperson Guideline 2: Detention, which states that:

 

“In circumstances where detention is lengthy, the member is under a heightened obligation to consider ATDs, specifically release with appropriate conditions. The burden on the Minister to justify continued detention increases over time as the length of detention continues. The Minister must establish that the detention remains hinged to a legitimate immigration outcome. Detention is not justified if it is no longer necessary to further the immigration purpose, or if the immigration outcome is no longer achievable.”

 

The oft-mentioned “hinge” to an immigration purpose is what makes the enforceability of a removal order such a key issue when it comes to the legality of immigration detention – for if the removal order is no longer enforceable, what is the immigration purpose of the detention? Removal is no longer possible, and as a result, there is no immigration-related reason to detain the individual in question – and no foreseeable end to the detention in sight.

 

The Federal Court in Taino appeared to reach a very different conclusion, however. Despite canvassing Chaudhury, Brown and Ali, the Court drew a surprising conclusion: that “removal – and the existence of a removal order – is one hinge in the machinery of immigration control. But so, in my view, is danger. That is a second hinge that may necessitate detention.” (para 52) The Court subsequently doubled down on this reasoning, holding that, “while Mr. Taino’s detention may no longer be as strongly hinged to immigration control purposes because one hinge has been taken off the door to his release, namely by the positive restricted PRRA and resulting stay of removal, a second hinge nonetheless continues to attach the door preventing his freedom: his present and future danger to the Canadian public, as found both in his danger assessment, and also in the Member’s Decision.” (para 76)

 

This second hinge, referred to on two separate occasions by the Federal Court in the Taino decision, does not seem to find any grounding in the habeas jurisprudence, where there had been but one hinge: the link to an immigration purpose.

 

The Court in Taino justified its departure from the habeas line of jurisprudence on the basis that “the test for habeas corpus decisions differs from the statutory test under the [IRPA] and the [IRPR]” in that “the habeas corpus test and the remedy are not equivalent to those provided under Canada’s immigration scheme.” (paras 70-71) That may be the case, but the fact that the legal test for an application for habeas corpus is different from the analysis carried out in a detention review does not divest the Immigration Division – and by extension the Federal Court – from its obligation to continually assess whether there is an immigration-related purpose to any given instance of detention.

The Taino Court’s second justification for its departure from the habeas line of jurisprudence was that in the habeas cases, “much longer periods of detention had elapsed than has been the case for Mr. Taino.” (para 71) The flaw in this reasoning is that length of detention is not relevant to whether detention is hinged to an immigration purpose. Detention can become unhinged from an immigration purpose after 48 hours, just as it can become unhinged after three years. The reasoning of the courts in Chaudhury, Ali, and Brown make clear that detention must be hinged to an immigration purpose throughout. The moment it becomes unhinged, it is no longer justified, because once there is no immigration purpose to a given instance of detention, there is no foreseeable endpoint. Detention has become indefinite.

 

Why is this so troubling? The answer, in my view, is section 15 of the Charter – an issue that was not canvassed by the Federal Court in its decision in Taino.

 

The relevance of section 15 of the Charter

 

In Andrews v Law Society of British Columbia, [1989] 1 SCR 143, the Supreme Court recognized citizenship as an analogous prohibited ground of discrimination for purposes of an equality analysis under section 15. However, the SCC’s subsequent holding in Canada (Minister of Employment and Immigration) v Chiarelli, [1992] 1 SCR 711 that “non‑citizens do not have an unqualified right to enter or remain in the country” made it very difficult for noncitizens in Canada to make any effective rights claims. The Chiarelli holding has subsequently been interpreted time and again to stand for the troubling proposition that a noncitizen’s deportability effectively justifies differential treatment for purposes of rights claims under the Charter (most often, section 7). And while there have been various strong critiques of the way Chiarelli has been interpreted and applied, it remains good law.

 

Where, however, an individual is no longer deportable, the holding in Chiarelli would no longer appear to apply. That is, if a noncitizen is not deportable, then they are no different from a Canadian who makes a rights claim under the Charter. Such is the case in Taino. Given that Mr. Taino was no longer deportable as a result of the unenforceability of the removal order when he came before the Immigration Division, and then the Federal Court, the Chiarelli logic no longer applied. As a result, detaining Mr. Taino for the sole reason that he constitutes a danger to the public would appear, on the face of it, to constitute a breach of his equality rights under section 15 of the Charter. No Canadian could or would be detained on this danger standard. As a result, Mr. Taino should not be detained on this same danger standard, given that there is no immigration purpose to be achieved by detaining him.

 

The flaw in the Court’s reasoning is easily understood by carrying it to its logical extreme. If it is irrelevant whether Mr. Taino’s removal order is unenforceable, then that means, as the Federal Court explicitly stated, that an enforceable removal order – i.e. deportability – is not a prerequisite for immigration detention. Any noncitizen, regardless of whether they are involved in any immigration proceeding, could be detained on the sole basis that the CBSA is of the opinion that they meet the danger threshold under IRPA, where the Immigration Division concurs.

 

The arbitrariness of this outcome becomes apparent when one remembers that there is a legal regime for “dangerous” Canadian citizens: the dangerous offender designation in criminal law. The Crown can make an application to have an individual designated a dangerous offender where the accused has been found guilty of a serious personal injury offence, and where it is established that the offender constitutes a threat to the life, safety or well-being of others on the basis of evidence of dangerous and intractably persistent or brutal behaviour, or that the offender has shown an inability to control his sexual impulses, and there is a likelihood that he will thereby cause injury, pain or other evil to other persons.[1] In sum, dangerous offender designations are reserved for really serious offences.

 

If a noncitizen is not deportable, then they are effectively and generally subject to two parallel preventative detention regimes on the basis of two completely different interpretations of the meaning of a “danger” standard – and those two danger standards comport very different levels of procedural fairness, standards of proof, and evidentiary requirements. Moreover, there is no principled justification for the simultaneous application of these two differential regimes, as there would be if the noncitizen were deportable.

 

Is Taino the Canadian Al-Kateb?

 

Has the Federal Court in Taino endorsed a regime of indefinite immigration detention? Now, this is not to say that indefinite immigration detention did not already exist in Canada – as mentioned above, there have been multiple documented instances of immigration detention ranging up to as long as seven years. However, in all those cases, there was, at the very least, a purported end point to the detention: removal from Canada. In the case of Mr. Taino, there is no way to adhere to the pretence that he will be released from detention upon his deportation from Canada, for he is no longer deportable. In theory, therefore, the Court’s reasoning in Taino could justify his detention for as many years as the Canada Border Services Agency remains of the opinion that Mr. Taino poses a danger to the Canadian public, and the Immigration Division endorses that opinion.

 

This reasoning is reminiscent of the notorious decision of the High Court of Australia in Al-Kateb v Godwin, where the High Court endorsed the constitutional validity of indefinite detention, holding that the exclusion of dangerous noncitizens from the community could justify indefinite detention. That is, “exclusion was not merely ancillary; it could justify detention absent other statutory purposes related to entry, or removal.”[2] The High Court went on to further reinforce this reasoning in Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship, endorsing the detention of noncitizens for the sole purpose of the protection of society – though there was some dissent among the judges as to whether Al-Kateb had been correctly decided. Importantly, the High Court did not go so far as to overturn Al-Kateb, but left that possibility open should a future case raise a similar factual matrix.

 

Conclusion

In an era when xenophobia and the scapegoating of the migrant other seem to have become part and parcel of the political toolbox in many migrant-receiving nations like Canada, there are sound ethical reasons to be concerned about a legal regime that endorses the indefinite detention of noncitizens. It is also questionable that Canadian immigration legislation, when read in light of the Charter, would allow for such a detention regime. Canada does not need its own Al-Kateb. It is not yet clear how Taino will be interpreted going forward, given that at its heart, the decision turns on the appropriateness of conditions of release. In the meantime, immigration lawyers who practice in the detention arena should be alert and prepared with strong section 15 arguments at the ready in the face of continuing detention where a removal order has become unenforceable.

 

Molly Joeck has been practicing immigration and refugee law since 2014. In addition to her law practice, she is also currently completing a PhD focused on immigration detention under the supervision of Professor Catherine Dauvergne at the Law Faculty of the University of British Columbia.

[1] R. v Lyons, [1987] 2 SCR 309 at para 18.

[2] Peter Billings and Dallal Stevens, “Protection Seekers and Preventive Justice: Immigration Detention in Australia and the United Kingdom” in T Tulich, R Ananian-Welsh, S Bronitt, S Murray (eds), Regulating Preventive Justice: Principle, Policy and Practice (New York: Routledge, 2017).