The Immigration and Refugee Board (IRB) will conduct what it calls an independent audit of the long-term detention of non-citizens, after two court rulings in the past three weeks found detainees may be denied basic fairness.
The audit, to be completed this fall on a sample of cases from closed files, comes after Ontario Superior Court Justice Edward Morgan likened a refugee claimant's treatment at the hands of adjudicators to that of Joseph K in Franz Kafka's novel The Trial. The claimant was detained off and on for 17 months in a maximum-security provincial jail, even though he had done nothing wrong, the judge said in a ruling on Monday.
The IRB oversees the detention-review system, conducted by members of its Immigration Division – civil servants paid between $89,112 and $101,892, very few of whom are lawyers. More than 6,200 refugee claimants and permanent residents have been detained in fiscal year 2016-17, of whom more than 400 have been inside for more than 90 days. Reasons include being a danger to the public, of uncertain identity or a flight risk.
One of those, Ricardo Scotland, a 38-year-old single father from Barbados, went before Justice Morgan and was released on a writ of habeas corpus – a declaration that his detention was unlawful. He had been held as a flight risk and had been convicted of no crimes. At his last detention review before he asked Justice Morgan for his freedom, the Canadian government told the Immigration Division that it supported his release. But the adjudicator still refused to grant it.
Subodh Bharati, a lawyer who represented Mr. Scotland, said he welcomed the audit, but questioned how independent it would be. He said that, at a minimum, Immigration Division members need basic legal training on the principles of fundamental justice and the importance of procedural fairness.
"As Mr. Scotland's case has clarified, there are fundamental problems that will require substantive change," he said in an e-mail. "I hope that this audit is a starting point of more thorough overhaul which includes consultations with detainees and immigration lawyers."
Audrey Macklin, a University of Toronto law professor, called the audit a positive and long overdue step by the IRB to initiate internal reform, after external pressure. "These [pressures] have variously exposed detention decisions as procedurally unfair, arbitrary, incompetent, unnecessary, and indifferent toward the value of liberty, the best interests of children and the needs of people with mental-health problems," she said.
She said the audit should examine the qualifications, background and competence of Immigration Division adjudicators, "especially in relation to their capacity to understand, interpret and apply the relevant law." It should also examine whether the adjudicators "genuinely apply the rule that the burden is on the state to justify ongoing detention, not on detainees to justify release."
The announcement of the audit also follows a July 25 ruling by the Federal Court in Ottawa, in response to a constitutional challenge to the detention-review system brought by a Jamaican immigrant who had been in Canada since he was 8. As an adult, he amassed multiple criminal convictions and was detained for five years while Jamaica confirmed his nationality.
The Federal Court said the laws as written are not inherently flawed, but there may be shortcomings in how the Immigration Division applies them.
Justice Simon Fothergill set out several "minimum requirements" for the system, such as that the burden of showing why someone should be detained is always on the government, and that the adjudicator must always consider alternatives to detention. Also, the total time in detention should be "reasonable in all of the circumstances."
The IRB said in a news release on Wednesday that "while recognizing that Immigration Division members make thousands of well-reasoned decisions each year, often in challenging circumstances, the gravity of these decisions – determining for example whether or not an individual will continue to be deprived of their liberty – requires the IRB to be proactive in identifying and pursuing opportunities for improvement."