Canada (Citizenship and Immigration) v Li, 2009 FCA 85 (CanLII) (17 March 2009) The Federal Court of Appeal of Canada ('FCA') has held that indefinite detention is a violation of the right to liberty and security of person.
The Respondents are brothers Dong Zhe Li and Dong Hu Li, citizens of and fugitives from China. The Respondents entered Canada as visitors on temporary resident visas in December 2004. In January 2005, the Chinese authorities issued arrest warrants for an alleged fraud estimated at over $136 million CDN (of which $100 million CDN remained unaccounted for). The alleged fraud involved the transfer of funds from certain companies to the bank accounts of companies controlled by the Respondents. When the Respondents' visas expired in June 2005, they remained in Canada illegally. They were arrested by Canadian authorities in February 2007. They were detained and the Immigration Division of the Immigration and Refugee Board of Canada ('Division') determined that they were unlikely to appear for removal from Canada if released, thus their detention was continued. The Appellant is the Canadian Minister of Citizenship and Immigration, who sought judicial review of a decision by the Division (confirmed at first instance by the Federal Court) that ordered the release of the Respondents from detention.
As required by Canadian domestic legislation, specifically s 57 of the Immigration and Refugee Protection Act, S.C 2001, c. 27 ('IRPA'), the detention of the Respondents was reviewed every 30 days. At each review throughout 2007, it was determined that detention should continue due to the Respondents' high flight risk and the likelihood of the Respondents making efforts to avoid Canadian authorities if released.
On two occasions, the Division noted that the Respondents faced potentially long-term detention, but not indefinite detention. Indefinite detention would be in breach of s 7 of the Canadian Charter of Rights and Freedoms, which protects the right to liberty and security of the person. At the June 2008 review, the Division ordered the release of the Respondents under electronic surveillance because it concluded that they were then facing indefinite detention, however the Appellant successfully filed an application for judicial review and the release orders were set aside.
In September 2008, the Division again ordered the release of the Respondents under electronic surveillance. Up to this point, the Respondents had exercised their avenues to recourse under the IRPA at almost every juncture, thereby delaying their removal.
The Division's decision in September to release the Respondents was based on an estimate of the length of future detention including federal court judicial review and appeal processes. The Division noted that any possible number of steps could be taken by either side and the time for each step was unknown, thus the continued detention of the Respondents until their removal would be for an indefinite amount of time and therefore constitute a breach of their right to liberty under s 7 of the Charter of Rights.
The Minister for Citizenship and Immigration appealed this decision.
The case is illustrative of the 'legal quagmire' faced by the authorities when addressing the issue of detention. Létoureau JA noted that when embarking on the exercise of determining and quantifying what constitutes acceptable long-term detention, the authorities are confronted with 'a number of legal constraints often pulling in different, if not opposite, directions'.
For example it was noted that the IRPA empowers the authorities to arrest and detain foreign nationals illegally remaining in Canada, however it also affords the foreign nationals a wide array of proceedings to challenge (as demonstrated in this case). As noted by the FCA
"there is at each stage of the process a possibility of challenging the decision by way of judicial review and appealing to the [FCA]. Obviously, the multiplicity of challenges increases the length of the foreign nationals' detention."
That said, where delays are caused by either party's legitimate pursuit of redress as provided for by the legislation, such delays 'should not count against either party'.
Another set of competing considerations lay in Canada's domestic law on the one hand, including the right to not be detained indefinitely, and its international obligations to cooperate in the enforcement of criminal law on the other, including the Rome Statue of the ICC and a treaty signed with China promising to provide mutual legal assistance in criminal matters.
In addition, the FCA stated that the merits of keeping someone in detention must be balanced against that person's rights to liberty and security of the person and to protection against cruel and unusual treatment as well as the guarantee against arbitrary detention (all protected by the Charter of Rights). The FCA held that where there is an effective and meaningful process of ongoing review of the detention, as well as meaningful opportunities given to detainees to challenge their continued detention or the conditions of their release (as there are in Canada in accordance the provisions of the IRPA, in particular the 30-day reviews) then there is no breach of the Charter of Rights. However the FCA confirmed that the Charter of Rights does not authorise indefinite detention.
The question for the court was: 'Does lengthy detention become "indefinite" detention, and consequently a breach of s 7 of the Charter of Rights, where the tribunal estimates future length of detention on a detainee's anticipated pursuit of all available processes... including Federal Court proceedings?'
The FCA stated that factors to be taken into account when reviewing one's detention include (but are not limited to): the reasons for detention; the length of detention; the reasons for delay in deportation; the anticipated future length of detention; and the availability of alternatives to detention. Another important principle emphasised by the FCA was that detention on the basis that a detainee would not appear for removal should not be for as long as when a person is considered a danger to the public.
The FCA held that it was an error of law to speculate on potential proceedings or available processes that are not yet underway, rather the estimate of time should be based on actual pending proceedings as they exist at the time of each monthly review. Moreover the speculation was 'too far reaching, unwarranted, unreasonable and unnecessary'. The Division wrongly assumed that the Federal Court and FCA would entertain all of the Respondents potential applications and also failed to consider the possibility that proceedings could be expedited (as indeed they were). The FCA also found that the Division had failed to take into account and assess relevant factors including Canada's international undertakings to assist in the enforcement of criminal law. The appeal was allowed and the matter was referred back to the Division for a re-determination.
Relevance to the Victorian Charter
This decision is relevant to ss 10 and 21 of the Victorian Charter, which guarantee protection from torture and cruel, inhuman or degrading treatment and the right to liberty and security of person, respectively. In particular, s 21 states that every person has the right to liberty and security and must not be subject to arbitrary detention (sub-s 2) nor deprived of his or her liberty except on grounds and in accordance with procedures established by law (sub-s 3). In the eloquent opening words of Létoureau JA, 'this thorny appeal demonstrates the delicate balancing act required when issues of criminality, long-term detention and human rights collide'. This decision contains helpful discourse in respect of relevant factors to be considered in such circumstances.
Neither the Victorian Charter nor the Canadian Charter of Rights specifically prohibit indefinite detention. Section 7 of the Charter of Rights simply states: 'Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.' This has been interpreted by the Canadian judiciary to render indefinite detention unlawful. A parallel argument could be made in respect of s 21 of the Victorian Charter. Moreover if such an argument were successful, Victorian authorities may be compelled to adhere to a meaningful process of ongoing review of the detention and the estimated duration thereof (such Canada's 30-day review system), failing which it could be held that the detention is indefinite and therefore in breach of the Victorian Charter.
The decision is available at http://www.canlii.org/en/ca/fca/doc/2009/2009fca85/2009fca85.html.
Briohny Coglin is a lawyer with Minter Ellison