Immigration board to audit process for reviewing long-term detention

TORONTO — The Immigration and Refugee Board of Canada says it will carry out an independent audit of the process used to reassess the long-term detention of permanent residents and foreigners after two recent court decisions raised concerns that the rules may not always be applied fairly.

The board said it will look into how rigorously and thoroughly cases are examined by its Immigration Division during detention reviews, which are mandatory monthly hearings to determine whether there are still grounds to detain someone.

The audit will be completed this fall and delve into detention reviews from closed files, the board said. The results will eventually be made public and taken into account as the board revises its guidelines on detention, it said.

“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,” it said in a statement.

The move comes amid criticism from immigrant rights groups and others who say the review process is stacked against detainees.

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The board said it was partly spurred to act by a federal court decision issued last month that found the rules for detaining some foreigners who can’t be deported quickly are constitutional but not always perfectly applied.

It said a decision handed down this week by the Ontario Superior Court of Justice provided “further impetus” for the audit.

In that ruling, Justice Edward Morgan ordered the release of Ricardo Scotland, saying the man had been held in maximum-security facility near Niagara Falls, Ont., for 10 months “for no reason at all.”

Scotland, a refugee claimant from Barbados, was detained twice for a total of roughly 17 months since 2013 in what the judge described as a Kaftaesque situation.

He was initially detained by the Canada Border Services Agency after being deemed a flight risk over criminal charges that were eventually stayed, Morgan said.

Scotland’s detention was then repeatedly extended over alleged breaches of his bail conditions that turned out not to be breaches at all and for which he was never convicted, the judge said.

“Although his detention has been reviewed on a monthly basis by the Immigration Division of the Immigration and Refugee Board of Canada … and despite the fact that counsel for the Attorney General of Canada puts forward no substantive reason for his continued detention, Mr. Scotland cannot seem to get himself out of custody,” he wrote. 

“He appears enmeshed in an endless circuit of mistakes, unproven accusations, and technicalities.”

Morgan took the board to task for what he called its “circuitous logic” that saw members justify Scotland’s continued detention by citing previous decisions to keep him behind bars, even though these were founded on faulty information.

The judge also said the board simply took the CBSA’s word that breaches had occurred rather than evaluating the situation itself.

“This delegation of authority to the enforcement agency who is a party to the case against Mr. Scotland provides a graphic illustration of improper self-judging,” he wrote. 

“The CBSA is a law enforcement agency and plays an adversarial role in detention proceedings. It is not a neutral arbiter of justice and cannot make a decision that is for an adjudicator to make.”

Paola Loriggio, The Canadian Press

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