Maximum-security jail ruled unconstitutional in immigration detention case

In a partial victory for longtime immigration detainee Ebrahim Toure, a Superior Court judge ruled Thursday that his indefinite detention in a maximum-security jail without charge amounted to “cruel and unusual” treatment and violated the Charter of Rights and Freedoms.

But Justice Alfred O’Marra rejected Toure’s application for release, ruling that the federal government still had a right to detain the West African man, who has been behind bars for more than four-and-a-half years because Canada has been unable to deport him.

But O’Marra ordered Toure’s immediate transfer to the Immigration Holding Centre, a less-restrictive facility for immigration detainees.

He said that detaining Toure, who has no criminal record in Canada, has never committed a violent offence and is not considered a danger to the public, in a maximum-security jail was a disproportionate means for the government to address its concern that he is unlikely to show up for his deportation if it is ever arranged.

“His only conviction is for a non-violent property offence from 12 years ago in Georgia,” O’Marra said, referring to Toure’s 2005 conviction for selling pirated CDs and DVDs in Atlanta.

“. . . Mr. Toure has spent more time in a maximum-security facility than someone convicted of a serious crime.”

Toure, 46, is a failed refugee claimant originally from The Gambia. He says he is willing to be deported, but doesn’t have any identity documents and Gambian authorities have thus far refused to issue him any.

Immigration officials, meanwhile, accuse Toure, who was profiled earlier this year as part of a Star investigation into Canada’s immigration detention system, of withholding information that would help them deport him. They believe his name is actually Bakaba Touray, and also point to the fact that until December 2015 he had insisted he was “100 per cent” from Guinea.

Toure says he has since given government officials everything he has and just wants to go home.

But O’Marra found Toure’s “lack of cooperation” — he refused to provide a DNA sample until this summer, for example — had impeded immigration officials’ efforts in “good faith” to remove him, and, so, his continued detention is justified.

Jared Will, Toure’s lawyer, said that while O’Marra’s decision was a “strong condemnation of the almost automatic use of maximum-security facilities” to hold immigration detainees, it doesn’t resolve the underlying issues of Toure’s indefinite detention or answer the question of restitution.

“What do we do about the fact that his rights were violated over the four-and-a-half-year period that he was held (in maximum-security jail)? That’s the question the (Canada Border Services Agency) should be asking itself with respect to all the other detainees that they’re continuing to hold there.”

Canada detains thousands of non-citizens every year for immigration purposes if they have been found to be a flight risk, a danger to the public or their identity is in doubt.

The average length of detention is about three weeks, but complicated cases, such as Toure’s, can drag on indefinitely, for months or years. Unlike many other countries, Canada does not limit the time someone can be held in immigration detention.

In the fiscal year ending this past March, nearly one-third of the 6,251 people who were detained were held in maximum-security provincial jails, according to government statistics.

Almost all long-term detainees end up in jail, where they are subject to regular strip searches, lock-downs and treated the same as convicted criminals or those awaiting trial. (A recent government report found that two-thirds of the combined total days spent in immigration detention last year were spent in provincial jails.)

Will said O’Marra’s judgment “shouldn’t be limited to Mr. Toure’s circumstances,” and that it is “inappropriate” for the government to continue to hold any immigration detainees in criminal jails.

The Liberal government has said it intends to “sharply” reduce the use of provincial jails while expanding alternatives to detention as part of what it calls a “new framework” for immigration detention, scheduled to be implemented next spring.

Public Safety Ministry spokesman Scott Bardsley blamed Stephen Harper’s Conservative government for “a decade of inaction,” and said that the Liberals are taking steps to create a “fairer immigration detention system for the humane and dignified treatment of individuals, while upholding public safety.”

Since taking power in the fall of 2015, the Liberal government has detained fewer people for immigration purposes than the Harper Conservatives. Long-term detentions, of 90 days or more, are also decreasing. Last year, Public Safety Minister Ralph Goodale announced a $138-million investment to upgrade and expand immigration detention facilities in an effort to reduce its reliance on provincial jails.

But there have been no significant legislative changes.

Immigration lawyers and detainee advocates have called on the government to limit the time someone can stay in immigration detention, as the United Nations Human Rights Committee has recommended.

O’Marra’s written decision was not immediately available for review.

Will said O’Marra’s judgment that there is a “reasonable prospect” of Toure’s deportation was “quite disappointing.”