The government of Canada is trying to get rid of a section of the country’s immigration laws that it says targets foreign nationals who are eligible for temporary protection under the Canada-U.S. refugee convention.
The section, known as the “detention facility” provision, was put in place to allow asylum seekers to be held at the Immigration and Refugee Board of Canada’s downtown Toronto offices during a humanitarian crisis, but is now set to expire on March 22.
The Conservatives have argued that detaining foreign nationals is necessary to ensure Canada’s security, but the legal opinion by the high court is a bit more nuanced than that.
According to the opinion, Canada’s national security is not at risk if the detentions were extended to people who are not entitled to temporary protection, but are subject to a warrant from the courts to be detained at a facility designated by the courts for that purpose.
“Detention of foreign nationals would not be likely to further jeopardize Canada’s interests in the region.
But it is a reasonable accommodation in circumstances of acute security concerns,” the court said.
The court added that the provision has no “unifying purpose” other than to ensure that detention facilities for people fleeing violence and persecution are designated.
“A person detained in a detention facility for non-refoulement is not subject to the same legal obligations as a refugee,” the opinion said.
“The court finds that it is not reasonably possible for Canada to detain a foreign national in a custody facility designated for nonrefoument purposes for the period during which the foreign national is entitled to Temporary Protection under the Refugee Convention.”
The court noted that the temporary protection provision was part of the immigration act that established Canada’s refugee policy, and therefore does not extend to people with the same status as a Canadian refugee.
“Canada is concerned that the detenuation provision would be a ‘new addition’ to the Canada Border Services Agency’s list of activities and activities that require the authorization of a warrant for detention in the custody of the CBSA.
Such a warrant could provide an avenue for the CBSE to conduct a prolonged, indefinite detention of a foreign individual,” the majority said.
The court said the “contingency plan” is in place for those who are already detained in detention facilities, but that it does not apply to those detained in transit or awaiting their removal to another country.
“In light of the fact that the detention facility provision is no longer in force and has been replaced by the contingency plan, it is unnecessary to consider whether the provision is in the national interest,” the ruling said.
“The contingency plan is intended to provide an interim accommodation for people who have been detained in immigration detention facilities since the arrival of the temporary protections program.”
It added that detention is also used to help protect Canada’s border.
“Given that the purpose of the detention facilities is to ensure safe passage to Canada, it would be unreasonable to expect the CBSP to detain individuals for longer than a few hours while waiting to be removed from the border.
This accommodation is not intended to extend detention to the length of a single day.”
The decision was issued in a separate case, involving two immigrants who were detained in an immigration detention facility in Quebec.
The ruling is expected to be heard in the fall.