Borderlines Podcast Episode 39 – Immigration Detention Hearings after Brown v. Canada, with Aris Daghighian

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Aris Daghighian is a senior associate with Green and Spiegel LLP in Toronto. He represented the Canadian Association of Refugee Lawyers as intervenors in Brown v. Canada, 2020 FCA 130.

In this episode we discuss the issues raised in the case, including how immigration detention works in Canada, what the disclosure obligations should be on the government in an immigration detention proceeding and whether there should be a maximum time that someone can be held in immigration detention.

As a result of the FCA decision in Brown and the feedback received through our consultations, the IRB has revised the Guideline in the following ways:
  • Clarify that there must be a nexus to an immigration purpose for detention to continue.
  • Reinforce the Division’s obligation to consider sections 7, 9 and 12 of the Charter in exercising its discretion concerning whether or not detention is warranted.
  • Confirm that consideration of conditions of detention is an extension of the ID’s Charter jurisdiction.
  • Reinforce that the Minister has the legal burden to establish that detention is lawfully justified and remains on the Minister throughout the detainee’s period of detention.
  • Reinforce that the Division must decide afresh whether continued detention is warranted at each detention review.
  • Recognize that there is no obligation on the person concerned to lead fresh evidence between detention reviews for the ID to reach a different result.
  • Clarify that the Minister must disclose all relevant information in advance of the hearing and in a timely manner.
  • Clarify that the potential for self-harm should not be a basis for a finding that the person concerned constitutes a danger to the public.
  • Adjust the Guideline’s section on minors to reflect the codification of best interest of the child considerations in the Immigration and Refugee Protection Regulations.
  • Outline considerations to be taken into account when determining whether a person concerned is unable to appreciate the nature of the proceedings.
  • Clarify that a detention review should generally be concluded on the same day that it begins.