Guest Speaker: Petra Molnar
Immigration detention falls under the framework of administrative law – the person being detained has not committed a crime under Canada’s Criminal Code, but is being detained for immigration reasons.
Due to the largely discretionary nature of immigration detention and the lack of oversight of Canadian Border Services Agency (CBSA) detention mechanisms, serious issues have been raised by migrant rights groups, lawyers, and refugee advocates about the treatment of migrants in detention. These real world barriers impede access to justice for the thousands of migrants detained in Canada every year, such as access to counsel, information, and community support as they prepare their refugee claims or gather evidence for their detention review hearings. Immigration detention also adversely affects vulnerable migrants, such as children or people with mental health issues.
However, Canada has recently seen some encouraging developments in its immigration detention regime. For example, in BB and JFCY v Minister of Citizenship and Immigration, the Federal Court found that detrimental effects of detention on children must be considered in detention review proceedings. In Chaundhary v Canada, the Ontario Superior Court also brought in a long-awaited clarification of the ancient writ of habeas corpus and immigration detainees now have a right to apply for direct relief at court as a violation of their constitutional rights under the Canadian Charter of Rights and Freedoms. These decisions impact the operational realities of Canada’s immigration detention practices and will also hopefully spur further reform in the global detention regime. For example, in December 2016, the Supreme Court of the United States heard arguments in Jennings v Rodrigues about imposing limits on the indefinite detention for ‘illegal aliens.’ It remains to be seen whether the current political climate will affect the immigration detention regime.
Ultimately, Canada’s immigration detention regime is a costly, ineffective, and discretionary system which violates the human rights of migrants, including the right to a fair trial, the right not to be arbitrarily detained, and the right of life, liberty, and security of person.
Petra Molnar, M.A., J.D., is a researcher and migrant rights advocate. She is a former refugee settlement worker who has researched forced migration issues in Canada and internationally. Petra writes about the discourses that shape the relationship between law, society, and culture and the politics of refugee, immigration, and international human rights law.