Current length of detention has now engaged liberty interests under section 7 of the Canadian Charter of Rights and Freedoms

On June 26th, 2015, a Member of the Immigration Refugee Board decided to continue detaining a 26 year-old Yemen-born, former permanent resident, despite the Federal Court ruling that the current length of detention has now engaged liberty interests under section 7 of the Charter. The refugee law office of Ms. Arghavan Gerami successfully argued this case before Honourable Mr. Justice Le Blanc (Ahmed v. Canada).

The Immigration Refugee Board Member held that continued detention was justified on grounds of flight risk and danger to the public, despite a detailed release plan presented by the detained individual’s legal counsel and the fact that the national parole board had deemed this individual safe to re-enter society two years prior. The Member also agreed with the Minister that the proposed plan, consisting of a $10,000 bond, two sureties, a daily supervision schedule and a commitment to see a psychologist, was not sufficient to mitigate the above grounds of detention.

The Federal Court’s findings on this case two days prior to the Member’s decision, however, suggested that continued detention of this individual would run contrary to the Charter. The Federal Court judge, whose jurisdiction trumps that of the Immigration Refugee Board, found that deportation of this individual was unlikely to take place in the foreseeable future given the dangerous ground conditions in Yemen. As such, the judge ruled that the current length of detention has now reached the point where the individual’s Charter protected liberty rights have been engaged, effectively characterizing the detention as indefinite. And yet, notwithstanding these findings and counsel’s arguments that a violation of liberty rights under the circumstances undermines other considerations, the IRB Member held that the possible risk posed by this individual outweighed the indefinite nature of his detention.

While indefinite detention can be justified in some circumstances, the extent to which liberty rights under the Charter can be infringed is limited. Immigration lawyers believe that, on the facts of this case, the reasonable limit for infringement has already been surpassed. Limitations on section 7 Charter rights must be in accordance with the principles of fundamental justice, and therefore cannot be arbitrary or disproportionate. Depriving an individual of their liberty for an indefinite amount of time, especially when the criminal justice system has already authorized their release, cannot be said to accord with these principles.