Immigration detainee says four years spent in custody violates Canada's charter
Ebrahim Toure, who has been locked up in a maximum-security jail since February 2013 despite not facing any criminal charges, is arguing that his detention is indefinite and arbitrary.
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A failed refugee claimant who has spent four-and-a-half years in a maximum security jail because the government has been unable to deport him argued in Ontario Superior Court on Tuesday that his ongoing detention violates the Charter of Rights and Freedoms.
Ebrahim Toure, who has been locked up at Central East Correctional Centre in Lindsay since February 2013 despite not facing any criminal charges, is arguing that his detention is indefinite and arbitrary because there is no reasonable prospect he will be deported in the “foreseeable” future.
The 46-year-old, who was profiled earlier this year as part of a Star investigation into Canada’s immigration detention system, said he is not trying to stay in Canada and is willing to be deported. He said he was born in Gambia and grew up partly in Guinea, but has no identity documents. He can’t prove his citizenship to either country, so neither will issue him a passport or agree to take him back.
Immigration officials, meanwhile, accuse Toure — who used multiple aliases while working illegally in the U.S. in the early 2000s and previously insisted he was “100 per cent” from Guinea — of deceiving them and intentionally thwarting his removal. They believe his name is Bakaba Touray and that he is withholding information that would allow them to deport him. He says he has given them all the information he has.
Toure is the latest immigration detainee to take the government to court on a habeas corpus application — a long-enshrined legal recourse that allows anyone held by the state to contest the lawfulness of their detention.
It’s the same mechanism by which immigration detainee Ricardo Scotland was released last month in a scathing decision by Justice Edward Morgan, who roundly criticized both the Canada Border Services Agency (CBSA) and the Immigration and Refugee Board and likened Scotland’s baffling predicament to a Franz Kafka novel.
“Although the government cannot provide a clear rationale for Mr. Scotland’s initial or continued detention,” Morgan wrote, “the reason for this lack of clarity is itself clear to me: there is no rationale. Mr. Scotland is being held in prison for no real reason at all.”
It’s also how Kashif Ali, who was held in immigration detention for more than seven years while the government tried to deport him, was released in April when Justice Ian Nordheimer said Canada could not “purport to hold someone in detention forever.”
Habeas corpus has, in effect, allowed long-term immigration detainees to circumvent the system by which the federal government indefinitely jails non-citizens while it tries to deport them.
Toure, who is being held solely as a flight risk and is not considered a danger to the public, is now the longest-serving immigration detainee in detention.
On Tuesday, the first day of a scheduled two-day hearing, the small courtroom was filled to capacity with supporters from Toronto’s West African communities, as well as members of the End Immigration Detention Network. Dozens of people were forced to wait in the hallway until the proceedings were moved to a larger courtroom in the afternoon.
Court heard testimony from two CBSA officials responsible for Toure’s case: John Oliveira, who makes the government’s case for Toure’s continued detention at the Immigration and Refugee Board; and Dale Lewis, an investigator with the CBSA’s Long-Term Detentions Unit.
Toure’s lawyers, Jared Will and Jean Marie Vecina, spent most of the day questioning Oliveira and Lewis about the depth and documentation of their efforts to remove Toure from the country.
Will challenged Lewis to explain how and why he was certain that Toure — who says he is illiterate — was wilfully deceiving the government about the spelling of his last name. He said the two spellings are phonetically identical. “For someone who is illiterate or has never had any identity documents, are those actually two different names?” Will asked. “If you can’t read or write, what’s the difference between Touray and Toure?”
“I don’t know what to say,” Lewis said.
Since taking power in 2015, the Liberal government has detained fewer people for immigration purposes than the Conservatives under Stephen Harper. Long-term detentions — 90 days or more — are also decreasing.
Public Safety Minister Ralph Goodale, under whose purview immigration detention falls, has said repeatedly that the government intends to create a “better” and “fairer” immigration detention system that reduces the use of criminal jails and expands alternatives to detention. A new “framework” for alternatives to detention is scheduled to be implemented next spring, for instance, and ongoing investments into federal immigration detention centres are aimed at reducing the use of provincial jails.
But advocates of immigration detainees are looking for more significant and immediate changes.
Before Tuesday’s hearing, the End Immigration Detention Network held a rally outside the University Ave. Courthouse calling for a 90-day limit on immigration detention. Almost all of Europe, as well as several other countries, have strict limits on how long their governments can hold someone in immigration detention, ranging from 45 days to 18 months.
Canada, like the United Kingdom, Australia and New Zealand, has no such limit, so cases like Toure’s can drag on indefinitely. The United Nations Human Rights Committee has called on Canada to set a “reasonable” time limit for immigration detention.
Toure’s hearing continues Wednesday.