The moral failings of Canada’s immigration-detention system // Opinion

Precedent opinion peice
My client was guilty of no crime, but an unjust system kept him behind bars for five years

By Subodh S. Bharati

On Tuesday December 5th, 2017


When I first met Abdirahmaan Warssama, in 2012, he’d been in a maximum-security jail for three years. He wore orange prison garb, as if serving time for a crime. But he wasn’t. He wasn’t even facing charges.

Warssama’s story begins in the 1980s. He arrived in Canada, in his 20s, fleeing the Somali civil war. He had been tortured, his father killed. Then, after close to two decades of living peacefully in Canada, he was convicted of a few minor crimes. He received only one day in jail plus 87 days of time served. Nevertheless, this minor criminality was enough to cause the Canadian Border Services Agency (CBSA) to want to deport him to Somalia.

But there was a catch: the CBSA wouldn’t remove him unless, for reasons that remain unclear to me, he signed a paper indicating he “wished” to go back. Since Warssama refused to sign something that wasn’t true, he was thrown in jail as punishment for not “voluntarily consenting” to return to the place of his torture.

Warssama was one of my first encounters with Canada’s immigration-detention system. At first, I thought his case was an anomaly. It wasn’t. I have since represented many men, women and children who are detained, not for any crime or because they face charges, but because Canada wants to deport them. It’s often unclear why we want to deport them. It’s always unclear why we need to imprison them, especially in maximum-security jails.

This system is flawed. The only reason it’s considered constitutional to incarcerate non-criminals via immigration detention is that detainees have the “right” to appeal their detention at monthly hearings. Yet this “right” is meaningless. These detention reviews are fundamentally unfair and offer no meaningful opportunity for release.

Illustration by Cornelia LiIn principle, the state must prove why the deprivation of liberty is necessary. But in most of these cases, adjudicators simply defer to allegations made by the CBSA. It is the detainee who must show there are “clear and compelling” reasons for an adjudicator to order a release and depart from all previous decisions to detain. As a result, every time a detainee loses a hearing, it’s harder to win the next one.

This is what happened to Warssama. To fight for his freedom, I took his case to the Federal Court, where a judge declared his detention to be manifestly unlawful. After five years, Warssama finally regained his liberty. Not everyone is so lucky. It’s expensive to hire a lawyer to fight an immigration-detention case. Some detainees qualify for legal aid, but certificates come nowhere close to paying for the amount of work it takes. These cases also take time. It took me two years to secure Warssama’s release.

Things have begun to get better. Over the past five years, the number of people in immigration detention in Canada has decreased from 8,739 to 6,251. The number held in maximum-security jails has fallen from 3,487 to 2,047. But this isn’t enough. Families continue to be broken apart. Children are separated from their parents. The mental health of this already vulnerable population continues to be compromised.

My clients often ask me what they’ve done to be treated this way. I have no answer. They’re not in jail for something they’ve done. They’re in jail because of who they are: non-Canadians.

I didn’t think this could happen in Canada today. I was proud to live in a country trying to reconcile with its past injustices, a country rooted in equality and justice. The measure of a country is not simply in its principles, but in its practice. Immigration-detention reform is a much-needed step toward practising our principles.

Subodh S. Bharati runs an immigration law firm. He appears regularly before the Immigration and Refugee Board, the Federal Court and the Superior Court of Ontario.




Precedent Magazine winter issue 2017 coverThis story is from our Winter 2017 Issue.




Illustration by Cornelia Li