Last updated on April 6th, 2021
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.
On April 1, 2021 the Immigration and Refugee Board issued updated detention guidelines in response to the Brown decision. They stated:
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.
Last updated on October 24th, 2020
Molly Joeck and Erica Olmstead are lawyers with Edelmann & Co. They, along with Peter Edelmann, acted for the Canadian Council for Refugees as interveners before the Supreme Court of Canada in Canada (Public Safety and Emergency Preparedness) v. Chhina.
In Chhina the issue before the Supreme Court was whether immigrant detainees have access to habeas corpus. We discuss Chhina, how immigration detention works in Canada, habeas corpus and issues going forward.
2:20 – Why would someone be detained in Canada for immigration reasons?
3:50 – In the federal detention review system who decides if an immigrant should be detained? What is the Immigration Division?
4:30 – How often would an immigrant who is detained have their detention reviewed?
5:30 – What are some issues arising with long term detention?
12:20 – Is there a difference in the issues that arise in long term detention in Ontario as opposed to British Columbia?
18:00 – Is an immigrant refusing to assist with removal by not getting a passport grounds for detention?
24:30 – What is habeas corpus?
27:30 – Why would someone in immigration detention want access to habeas corpus?
30:30 – Why is habeas corpus an alternative to federal court judicial review?
36:00 – The majority in Chhina appears to have commented negatively on certain aspects of the federal detention review process without striking it down. Why did they not just strike it down?
41:00 – How long do habeas corpus applications take?
46:00 – How many times can someone file habeas corpus applications?
51:00 – How has the Immigration Division reacted to the spate of habeas applications?Read more ›