“CONSTITUTIONAL CHALLENGES TO THE DIFFERENTIAL TREATMENT OF CANADIAN AND
NON-CANADIAN CITIZENS IN CANADIAN PRISONS”
INTRODUCTION
Thisis merely an introduction to
a longer paper presented at a conference in Johannesburg, South Africa in
December 2000. It is still relevant today.
Canadian law and policy discriminates in its treatment of
Canadian citizens and non-citizens who have been convicted of alleged serious
criminal offences and who have been sent to gaol. I argue that this
distinction is unconstitutional as contrary to sections 7 and 15 of the
Canadian Charter of Rights and Freedoms that respectively provide for the
maintenance of principles fundamental justice and against any king of
discrimination.
The discrimination is particularly repugnant because the
trigger to the differential treatment is a conviction under the Criminal
Code of Canada but the resulting differential treatment is justified under
the Immigration Act. The Immigration Act is not applicable to
Canadian citizens.
Canadian citizens and non-citizens may be charged for a
similar offence and may even be given a similar sentence but the treatment in
prison and length of sentence may be vastly different.
Before conviction, non-citizens may be placed under
immigration detention. They have thus to be bailed out both under the
Criminal Code as well as under the Immigration and Refugee Protection
Act. The Immigration Act poses tremendous problems for
non-citizens who are not wealthy or who have committed allegedly abominable
offences. They may get criminal bail but be denied immigration bail. Some
languish in detention until their trials several months down the road.
After conviction for allegedly serious offences all
non-citizens are subject to an immigration inquiry and deportation order.
Some get removed from the general population and sent into segregated
detention without reason. The excuse is that these individuals are under
immigration investigation. Immigration invariably denies this allegation.
They continue to be held in segregated detentions. While in segregated
detention, they miss out on the programs they were doing, they are denied
physical exercise, they miss out on their parole hearings, they cannot pursue
bails pending appeal and so on. They are generally treated as dangerous when
they are not.
Until relatively recently, non-citizens who were under
immigration detention while serving their sentences were not entitled to
parole hearings and possible release. Even now, paroled non-citizens may
continue to be held in prison under immigration detention until they finish
their sentences and face removal from Canada. Citizens would have long been
released under parole.
Non-citizens may also be declared to pose danger to the
public or as serious criminals under the Immigration Act for offences
that citizens would not remotely be considered to be dangerous or long-term
offenders if they were convicted for the same offences under the Criminal
Code. The declaration that a non-citizen poses danger triggers further
differential treatment for non-citizens in prison under the Immigration Act.
To demonstrate the differential treatment of non-citizens
who have been convicted of alleged serious offences, I select two actual cases
that I did and that challenged the constitutionality of this differential
treatment. These cases also show the legal maze through which a non-citizen
has to pass to challenge his treatment and the difficulties of navigating the
legal arenas.
One case deals with legal challenges to continued detention
of a non-citizen who had been paroled. This case was filed in Federal Court.
The second dealt with the issue of danger to the danger declaration. This
case was filed in the Supreme Court of Canada. The first was dismissed,
albeit that the judge found that the Adjudicator had committed several legal
errors.
The second was dismissed by the Supreme Court of Canada at
the leave to appeal stage and no reasons were given. These cases are given
merely as examples among numerous problems faced by non-citizens of Canada.
Even when the law gives you a fighting chance, it averts its eyes when it
comes to issues dealing with race.
A STATEMENT OF CLAIM BECAUSE OF OPPRESSION BY IMMIGRATION
A client of mine had retained me to sue the governments of
Canada and Ontario for negligence and oppression. The Federal government at the
time was in the process of removing him from Canada. I brought a stay
application in Federal Court, which was granted. When the stay was granted, the
client after much soul searching decided not to proceed with the suit. I am
reproducing the edited statement of claim to show what can and should be done to
dissuade government oppression.
The Plaintiff sued for 2 million
dollars.
The Plaintiff resides in the City of
Mississauga, in the Province of Ontario.
The Defendant, the Ministry of
Citizenship and Immigration, is a department of the federal government, which
is responsible for the federal immigration matter, and proper administration
of the Immigration Act and regulations made thereunder. The Defendant
– Ministry of the Solicitor General and Correctional Facilities - is a
department of the provincial government of Ontario. It is responsible for,
among others, protecting and maintaining property and civil rights in the
province including police and correctional facilities.
That the Plaintiff at the material time
was serving a sentence in one of the correctional facilities maintained by the
Defendant – Ministry of the Solicitor General and Correctional Facilities.
After serving a portion of the sentence on a criminal conviction, the
Plaintiff was granted parole on January 13, 1995, which was to be effective
(conditionally upon being granted release by the immigration authorities from
immigration authorities from Immigration hold) on January 19, 1995.
That the immigration authorities failed
to hold a detention review within 48 hours or soon afterwards, despite
numerous calls made by the Plaintiff, his common-law wife and his counsel, as
required under the law. The Plaintiff was illegally detained on immigration
hold without his detention being reviewed as contemplated under the law.
Because of the above the Plaintiff suffered mental anguish and depression and
suffered from traumatic, emotional and nervous upset. The Plaintiff incurred
several expenses including telephone bills and legal expenses. The Plaintiff
was released from incarceration after a month later in March 1st,
1995. The Plaintiff missed several important days of enjoyment of life with
his common-law wife and his little girl.
That while being incarcerated illegally,
the Plaintiff missed a lucrative business offer. Had the Plaintiff been
released in January 1995, he would have benefited from a million dollar
contract with companies in Nigeria to supply various merchandise. The
contract initially would have been for two years and would have fetched a
handsome profit for the Plaintiff. The prospective companies could not get in
touch with the Plaintiff between January and the end of February 1995 because
of the Plaintiff’s incarceration.
That while in illegal detention,
sometime between January 19, 1995 and February 17, 1995 when the Plaintiff was
doing a cleaning job in the detention center, a heavy metal object struck the
Plaintiff’s head. The Plaintiff was placed under medical observation. The
Plaintiff suffered from severe pain and nervous shock. The Plaintiff started
behaving in an erratic and crazy manner, which was visibly noticed by the
Plaintiff’s wife and his little daughter. The Plaintiff’s family suffered
seeing the Plaintiff’s condition and his abnormal behavior. The little girl,
who used to visit the Plaintiff in jail, would become hysterical when it was
time to leave.
That the Plaintiff pleads that the
Defendant -Ministry of the Solicitor General and Correctional Facilities - had
the responsibility for and control over the condition of the detention center
and responsibility for and control over activities carried on the premises.
That the Plaintiff’s mental and physical
injuries were caused by the negligence, breach of contract and duty of care of
the Defendant - Ministry of the Solicitor General and Correctional Facilities
- particulars of which are as follows:
a.It failed to have a regular system of inspection and maintenance for the
premises;
b.It allowed the heavy metal object to be let loose and fall on the
Plaintiff’s head when it knew or ought to have known that the inmates including
the Plaintiff would be hurt by it;
c.It failed to provide any sign or warning of the unusual danger;
d.It created an unusual danger that it ought to have foreseen, that would
cause injuries to the Plaintiff and other inmates at the center.
10.The Plaintiff’s injuries and pecuniary losses had their genesis when the
Ministry of Citizenship and Immigration failed to conduct the detention review
within the statutory period of 72 hours or soon thereafter and continued the
illegal detention of the Plaintiff in violation of their mandatory statutory
duty.
11.That the action of the Defendants through their officials/agents amounts
to a deliberate abuse of public office. The said Defendants acted with malice
and wit the intent to harm the Plaintiff and with the knowledge that its conduct
would cause physical and mental injury and would harm his business.
12.As a result of the Defendants’ conduct, the Plaintiff has suffered a loss
of income, goodwill, profit and other damages, particulars of which will be
delivered to the Defendants during the course of these proceedings. The
Plaintiff will continue to suffer from the injury sustained in the head and from
emotional/nervous shock and related psychological imbalance.
Note: sometimes the only thing going for disempowered people
is the promise of legal redress against the mighty and the powerful. Whether
legal redress is available has to be left to a case-by-case engagement.
