The Canadian Charter of Rights and Freedoms does not specifically impose a duration requirement for detention for an immigration purpose. However, when release is required, in balancing the considerations of risk flight to danger to the public against a Charter breach, the Charter will trump such considerations where the length of the detention reaches the state where it “constitutes cruel and unusual treatment or is consistent with the principles of fundamental justice” as per Canada v Li, 2009 FCJ 329.

The Charter considerations come into play only when an individual has been detained for an immigration purpose pursuant to the removal procedure or due to section 77 Certificate provisions for a lengthy period. The Charter may apply where a person has been detained for a lengthy period. The detention and release conditions under the Immigration and Refugee Protection Act allows for detention review every 30 days. At these detention review, alternative to detention ought to be considered by the presiding member. Such hearings are do novo in nature.

The following three cases are relevant and outline the legal jurisprudence on this issue:

  • Canada (Minister of Citizenship and Immigration) v. Li 2010 2 F.C.R. 433 (Fed.C.A.)
  • Mahjoub (Re) 355 F.T.R. 94
  • Charkaoui v. Canada (Citizenship and Immigration) 2007 1 SCR 350

The length of detention for an immigration purpose is an alive issue before the courts. The Federal Court of Canada has certified the following question for an appeal in Brown v Canada, 2017 FC 710: Does the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), 1982, c 11 impose a requirement that detention for immigration purposes not exceed a prescribed period of time, after which it is presumptively unconstitutional, or a maximum period, after which release is mandatory?

Contributor: Sadaf Raja

Sadaf practices immigration and refugee law in Calgary, Alberta. She has represented clients on several Detention Hearings before the Immigration and Refugee Board of Canada.