2020 FCA 130, 2020 FCA 130

A-274-17 A-282-17 2020 FCA 130 Alvin Brown and End Immigration Detention Network ( Appellants ) v. Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness ( Respondents ) and Canadian Association of Refugee Lawyers and Canadian Centre for International Justice ( Interveners ) Indexed as: Brown v. Canada (Citizenship and Immigration) Federal Court of Appeal, Gauthier, Stratas and Rennie JJ.A.—Toronto, February 26 and 27, 2019; Ottawa, August 7, 2020.

Citizenship and Immigration –– Exclusion and Removal — Inadmissible Persons — Detention and Release –– Appeal from Federal Court decision dismissing appellants’ Canadian Charter of Rights and Freedoms challenge regarding immigration detention regime under Immigration and Refugee Protection Act ( Act ) –– Alvin Brown (appellant) found inadmissible to Canada on basis of criminal convictions; ordered detained pending removal –– At each detention review, Immigration and Refugee Board, Immigration Division (ID) ordering appellant continue to be detained ––Appellant held in provincial correctional institutions for five years until deportation –– Despite efforts, Canada Border Services Agency (CBSA) unable to obtain travel document for appellant –– In Federal Court, appellant challenging constitutionality of immigration detention regime established under Act, ss. 57 , 58 , Immigration and Refugee Protection Regulations , ss. 244 – 248 –– Casting shadow on appellants’ constitutional challenge was Supreme Court of Canada’s decision in Charkaoui v.

Canada (Citizenship and Immigration) where Supreme Court prescribing process, protections required to ensure that lengthy, indeterminate detention be consistent with detainees’ rights under Charter, ss. 7 , 12 –– Supreme Court holding that extended periods of detention under Act not violating Charter if accompanied by regular review –– Whether Charter imposing requirement that detention for immigration purposes not exceed prescribed period of time –– Charter not imposing requirement that detention for immigration purposes not exceed prescribed period of time — However, ID members conducting detention reviews, judges sitting in judicial review must consider Charter , administrative law standards –– When detention provisions read in light of text, context, purpose, not infringing Charter, ss. 7 , 9 or 12 –– Clear from review that immigration detention scheme having all protections mandated by Charkaoui to ensure extended periods of detention not violating Charter, ss. 7 , 9 , 12 –– Legality of detention subject to judicial scrutiny in Federal Court –– Act , s. 58 authorizing detention for several purposes –– Act not constitutionally deficient because not stating expressly that which law already requiring –– Where there are regular detention reviews that give full, fair consideration to non- exhaustive considerations in Regulations , s. 248 , prolonged detention constitutional –– In present case, statutory grant of discretionary power using word “consider”, constituting open-ended grant of discretion –– Regulations , s. 248 factors having to be followed for continued detention to be legal under Act — In addition, nexus between detention, immigration purpose required –– Decision maker having to be satisfied, on evidence, that removal is a possibility — Charkaoui making no mention of foreseeability test –– Detention review scheme established by Parliament imposing continuing, overarching legal burden on Minister to establish that detention lawfully justified according to Act, s. 58 , Regulations , s. 248 , Charter –– Legal burden not changing if Minister establishing prima facie case of grounds for detention –– Procedural fairness requiring that detainee have advance disclosure of all evidence relevant to Regulations , s. 248 criteria, regardless of whether Minister relying on that evidence to support continued detention –– Thus, lawful exercise of power to order detention requiring adequate evidentiary foundation –– Judicial review testing legality of detention decision against Charter , common law principles; also testing reasoning process, transparency, integrity –– Appeal dismissed.

Constitutional Law — Charter of Rights — Immigration detention — Appeal from Federal Court decision dismissing appellants’ Charter challenge regarding immigration detention regime under Immigration and Refugee Protection Act ( Act ) — Whether Charter imposing requirement that detention for immigration purposes not exceed prescribed period of time –– When immigration detention provisions read in light of text, context, purpose, not infringing Charter , ss. 7 , 9 , 12 –– Immigration detention scheme having all protections mandated by Charkaoui to ensure extended periods of detention not violating Charter , ss. 7 , 9 , 12 –– Discretion to detain under Immigration and Refugee Protection Act, s. 58 , Immigration and Refugee Protection Regulations , s. 248 constitutionally compliant.

Constitutional Law — Charter of Rights — Legal rights — Cruel and unusual treatment or punishment — Appeal from Federal Court decision dismissing appellants’ Charter challenge regarding immigration detention regime under Immigration and Refugee Protection Act ( Act ) — Whether Charter imposing requirement that detention for immigration purposes not exceed prescribed period of time –– Members of Immigration and Refugee Board, Immigration Division having duty to exercise discretion in manner consistent with Charter ; obligation to consider Charter , ss. 7 , 9 , 12 inherent in exercise of discretion concerning whether detention warranted –– As Charkaoui v.

Canada (Citizenship and Immigration) noted, not detention itself or length that is objectionable; detention only cruel, unusual in legal sense if violating “accepted norms of treatment” –– As such, denying means required by principles of fundamental justice to challenge detention may render detention arbitrary, cruel or unusual, but system permitting detainee to challenge detention,

obtain release if justified may lead to conclusion that detention not cruel, unusual –– Federal Court not making reviewable error in dismissing many of appellants’ arguments regarding conditions of detention –– Evidence of conditions of detention falling far short of threshold of cruel, unusual punishment set by Supreme Court, not supporting broad declaration appellants seeking. This was an appeal from a Federal Court decision dismissing the appellants’ Canadian Charter of Rights and Freedoms challenge regarding the immigration detention regime under the Immigration and Refugee Protection Act ( Act ).

In dismissing the challenge, the Federal Court certified the question as to whether the Charter imposes a requirement that detention for immigration purposes not exceed a prescribed period of time, after which it is presumptively unconstitutional, or a maximum period, after which release is mandatory. Alvin Brown (appellant) was found to be inadmissible to Canada on the basis of a series of criminal convictions. At the end of his term of imprisonment, he was ordered detained pending removal because he was both a danger to the public and a flight risk.

Notwithstanding the increasing length of the appellant’s detention, at each of his subsequent detention reviews, the Immigration Division (ID) of the Immigration and Refugee Board ordered that the appellant continue to be detained. The appellant was held in provincial correctional institutions in Ontario from September 2011 until his deportation to Jamaica five years later in September 2016. Despite repeated and continuous efforts, the Canada Border Services Agency (CBSA) was unable to obtain a travel document for the appellant from the Jamaican High Commission during this time.

In the Federal Court, the appellant, together with the End Immigration Detention Network, challenged the constitutionality of the immigration detention regime established under sections 57 and 58 of the Act and sections 244 to 248 of the Immigration and Refugee Protection Regulations . There, they contended that the regime violates sections 7 , 9 , 12 and 15 of the Charter . Although the appellant had been removed from Canada by the time of the hearing, the Federal Court considered mootness and exercised its discretion to hear the application in the public interest.

The appellants appealed to the Federal Court of Appeal on the basis of the certified question. Casting a shadow on the appellants’ constitutional challenge was the Supreme Court of Canada’s decision in Charkaoui v. Canada (Citizenship and Immigration) where the Supreme Court prescribed the process and protections required to ensure that lengthy and indeterminate detention is consistent with detainees’ rights under sections 7 and 12 of the Charter .

The Supreme Court held that extended periods of detention under the Act do not violate the Charter if they are accompanied by regular review of the reasons for detention, the length of detention, the reasons for the delay in removal, the anticipated future length of detention and the availability of alternatives to detention such as release on conditions. But the Supreme Court also foresaw that cases could arise where a particular detention was not Charter compliant.

The appellants contended, in particular, that where removal is no longer reasonably foreseeable, release is the only constitutionally compliant outcome, and the failure of the Act to expressly require release “in these circumstances” renders the scheme constitutionally deficient. They argued as well that the legislation grants a discretionary power that may be exercised in an unconstitutional manner rendering the enabling provision unconstitutional. The appellants and interveners also argued that the detention scheme offends

section 7 of the Charter because it places an onus on detainees to justify why they should be released. Moreover, they challenged the constitutionality of detention orders under

section 12 of the Charter . At issue was whether the Charter imposes a requirement that detention for immigration purposes not exceed a prescribed period of time. Held , the appeal should be dismissed. The Charter does not impose a requirement that detention for immigration purposes not exceed a prescribed period of time. However, ID members conducting detention reviews and judges sitting in judicial review must consider Charter and administrative law standards. When the detention provisions are read in light of their text, context and purpose, there is no infringement of sections 7 , 9 or 12 of the Charter .

The detention scheme possesses the same hallmarks of constitutionality that allowed the Supreme Court in Charkaoui to find that extended periods of detention under the Act ’s security certificate detention scheme did not contravene sections 7 and 12 of the Charter . Charkaoui was also clear guidance from the Supreme Court that the recourse against an improper exercise of discretion resulting in the over-holding of a detainee is an application to quash that exercise of discretion under administrative law principles and

section 24 of the Charter , not to strike down the

section under

section 52 of the Constitution Act, 1982 . The immigration detention scheme has all of the protections mandated by Charkaou i to ensure that extended periods of detention do not violate sections 7 , 9 and 12 of the Charter . Detention reviews are timely and frequent: subsection 57(2) of the Act requires that detention be reviewed within 48 hours of arrest, within seven days after that, and every 30 days for the detention’s duration. The onus is on the Minister of Public Safety (Minister) to establish both a ground of detention and that detention is warranted based on mandatory, case- specific factors.

Detention may only be ordered where there are no appropriate alternatives, and, in considering alternatives to detention, subsection 58(3) authorizes the ID to impose any conditions that it considers necessary to neutralize the risk associated with release. The legality of the detention is subject to judicial scrutiny in the Federal Court. The appellants’ argument that the legislation does not go far enough failed.

Section 58 of the Act authorizes detention for several purposes. The power of detention will be exercised principally, but not exclusively, pending removal. Where detention is for the purposes of removal, and there is no longer a possibility of removal, detention on this ground no longer facilitates the machinery of immigration control and the power of detention cannot be exercised. Detention must always be tethered, on the evidence, to an enumerated statutory purpose. To conclude, the Act is not constitutionally deficient because it does not state expressly that which the law already requires. No principle of statutory

interpretation requires that, to ensure constitutionality, the legislature must state that which the law already requires. To require an express statement that the power of detention can only be exercised where there is a real possibility of removal would be to read-in a redundancy. The appellants advanced an alternate argument that because the discretion in

section 248 of the Regulations is not expressly subordinated to the obligation to release in the face of an unreasonably lengthy detention or a removal that is not reasonably foreseeable, the scheme is constitutionally defective. This argument was inconsistent with established methodology of Charter analysis. Where there are regular detention reviews that give full and fair consideration to the non-exhaustive considerations in

section 248, prolonged detention is constitutional. Rather than being a source of unconstitutionality, the existence of discretion ensures that the Charter rights of detainees receive full consideration in light of their particular circumstances. In this case, the statutory grant of discretionary power uses the word “consider” , an open-ended grant of discretion. Far from precluding the decision maker from having regard to Charter standards when assessing the appropriateness of detention, it requires it. The discretion to detain under

section 58 of the Act and

section 248 of the Regulations is constitutionally compliant. Whether to order detention pending deportation involves a delicate balancing of all the relevant circumstances. As noted in Charkaoui , the

section 248 criteria—rather than being a source of some deficiency—are the

guarantors of constitutional compliance. The

section 248 factors are “prescribed” factors which “must” be taken into account and ensure that extended periods of detention do not violate the Charter . The discretion the factors confer is precisely what ensures sensitivity to the context and circumstances of the individual case—a requirement under Charkaoui for constitutional prolonged detention. While the factors in

section 248 of the Regulations , as law, must be followed in order for continued detention to be legal under the Act , there must also be a nexus between detention and an immigration purpose. If that is missing, detention under the Act is no longer possible. The test for a nexus to an immigration purpose is not whether removal is reasonably foreseeable but, as established by the Supreme Court of Canada, whether removal be a possibility. The focus of the “possibility” test is on the existence of objective, credible facts. The decision maker must be satisfied, on the evidence, that removal is a possibility.

The conditions of detention are relevant to the legality of detention and the consideration of proportionality, whether under

section 12 of the Charter or under judicial review. There is a duty on ID members to exercise their discretion in a manner consistent with the Charter . An express power for the ID to consider the nature or conditions of detention is not required. The ability, indeed obligation, to consider sections 7, 9 and 12 is inherent in the exercise of the discretion concerning whether or not detention is warranted. As the Court in Charkaoui noted, it is not the detention itself, or its length, that is objectionable; detention is only cruel and unusual in the legal sense if it violates “accepted norms of treatment” .

As such, denying the means required by the principles of fundamental justice to challenge a detention may render the detention arbitrary and support the argument that it is cruel or unusual, but a system that permits the detainee to challenge the detention and obtain a release if one is justified may lead to the conclusion that the detention is not cruel and unusual. Many of the appellants’ arguments regarding the conditions of detention were dismissed by the Federal Court. No reviewable error in that finding was demonstrated.

The evidence of conditions of detention fell far short of the threshold of cruel and unusual punishment set by the Supreme Court and did not support the broad declaration sought by the appellants. The detention review scheme established by Parliament imposes a continuing and overarching legal burden on the Minister to establish that detention is lawfully justified according to

section 58 of the Act ,

section 248 of the Regulations , and the Charter . The legal burden does not shift or change should the Minister establish a prima facie case of grounds for detention. The detainee is not required in law to do anything. Establishing grounds for detention does not mean that a detention order should issue. It simply means that there is a basis to consider making a detention order. Nor does the legal burden on the Minister change with successive detention reviews.

As for the relevance of previous detention decisions, nothing in the Act or the Regulations places an obligation on a detainee to lead fresh evidence between detention reviews in order for the ID to reach a different result. Nothing in the Act or case law requires the detainee to demonstrate a change in circumstances. Members of the ID are obligated, under their oath and by law, to consider the circumstances of the particular individual whose detention or liberty is in issue in a fair and open-minded way. Each member is required to undertake their own independent assessment of the case for and against detention.

With respect to procedural fairness, there is no statutory language in the immigration detention scheme of the Act that ousts procedural fairness. The rules respecting disclosure in detention reviews are thus supplemented by the requirement for procedural fairness imposed by the common law. The need for detainees to know the case against them creates a disclosure obligation. To be meaningful, the disclosure obligation cannot be limited to information on which the Minister intends to rely. All relevant information must be disclosed.

Section 26 of the Immigration Division Rules , [1] even if followed, does not fulfill the minimum requirements of the common law duty of fairness. This is because the requirement to introduce evidence arises only where information provided is contradicted by another party. The statement in the Operational Manual: Enforcement (ENF) ,

Chapter ENF 3 “Admissibility, Hearings and Detention Review Proceedings”, that “[i]f the hearings officer recommends continued detention, the hearings officer should submit all available evidence to the ID in support of continued detention” (page 34) falls short of what procedural fairness requires. Procedural fairness requires that the detainee have advance disclosure of all evidence relevant to the

section 248 criteria, regardless of whether the Minister relies on it to support continued detention. Thus, the lawful exercise of the power to order detention requires an adequate evidentiary foundation. This includes all relevant evidence relating to the factors under

section 248 of the Regulations . In cases of inadequate disclosure, judicial review can be sought, on an expedited basis, and interim orders can be made compelling disclosure. Importantly, a detention decision may be vitiated if it is established that there has not been timely disclosure of material documents, which results in a breach of procedural fairness. Regarding judicial oversight, judicial review tests the legality of a detention decision against the Charter and common law principles. But it also does much more; it tests the reasoning process, its transparency and its integrity.

It examines the treatment of the discretionary factors and whether they were properly taken into account. It holds up the reasons to independent scrutiny to determine whether they pass legal muster from both a Charter and administrative law perspective. STATUTES AND REGULATIONS CITED Canada Evidence Act , R.S.C., 1985, c. C-5, s. 38.01 . Canadian Charter of Rights and Freedoms , being

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APPEAL from a Federal Court decision (2017 FC 710, [2018] 2 F.C.R. 453) dismissing the appellants’ Canadian Charter of Rights andFreedoms challenge regarding the detention regime under the Immigration and Refugee Protection Act. Appeal dismissed. APPEARANCES Jared Will and Jean Marie Vecina for appellant Alvin Brown. Swathi V. Sekhar for appellant End Immigration Detention Network. Bernard Assan and Charles Julian Jubenville for respondents. Sharryn Aiken, Maureen Silcoff and Aris Daghighian for interveners. SOLICITORS OF RECORD Jared Will & Associates, Toronto, for appellant Alvin Brown.

Deputy Attorney General of Canada for respondents. Legal Aid Ontario Refugee Law Office, Toronto, for interveners. The following are the reasons for judgment rendered in English by Rennie J.A.:

Table of Contents I. Overview II. The detention provisions of the IRPA comply with sections 7 and 9 of the Charter III. Limitations on the power of detention (

a) Jordan distinguished (

b) Other jurisdictions and international law (

c) Conclusion on sections 7 and 9 IV. Discretion and constitutionality V. A detention review hearing that complies with the Charter and administrative law (

a) The nexus to an immigration purpose (

b) Section 12 (

c) The legal burden (

d) The relevance of previous detention decisions (

e) Procedural fairness VI. Judicial oversight VII. Conclusion I. Overview [Back to table of contents ] [ 1 ] Enforcement of removal orders by the Canada Border Services Agency (CBSA) is an everyday occurrence in this country. In most cases, removal proceeds in an expeditious manner. But sometimes it does not. The person to be removed may not report. The receiving country may delay or refuse to issue the necessary travel documents. Sometimes the political situation in the receiving country is unstable, or removal carries an unacceptable risk of human rights violations.

Significant delays can result, placing the person subject to removal in an administrative and legal limbo. The person has no right to remain in Canada but Canada has no ability to effect the removal. [ 2 ] For certain foreign nationals, there may also be reasonable grounds to believe that they pose a danger to the public or are a flight risk and may not report to the CBSA for removal. In such cases, the Immigration Division (ID) of the Immigration and Refugee Board of Canada may order their arrest and detention pending removal ( Immigration and Refugee Protection Act , S.C. 2001, c. 27,

section 55 (IRPA)). [ 3 ] Over the course of a year, over 5 000 persons, inadmissible to Canada for various reasons, are held in immigration detention, either in immigration holding centres operated by the CBSA or in provincial correctional institutions. The vast majority of detentions are of short or intermittent duration—far less than 100 days. But some detainees are held for much longer. The appellant, Alvin John Brown, is an example of the latter. [ 4 ] The Federal Court has described the facts surrounding Mr.

Brown’s stay in Canada and eventual removal ( 2017 FC 710 , [2018] 2 F.C.R. 453 [reasons], per Fothergill J., at paragraphs 9–18). He was found to be inadmissible to Canada on the basis of a series of criminal convictions. At the end of his term of imprisonment he was ordered detained pending removal because he was both a danger to the public and a flight risk. Notwithstanding the increasing length of Mr. Brown’s detention, at each of his subsequent detention reviews the ID ordered that he continue to be detained. [ 5 ] Mr.

Brown was held in provincial correctional institutions in Ontario from September 2011 until his deportation to Jamaica five years later in September 2016. Despite repeated and continuous efforts, the CBSA was unable to obtain a travel document for Mr. Brown from the Jamaican High Commission during this time. [ 6 ] In the Federal Court, Mr.

Brown, together with the End Immigration Detention Network, a third party with public interest standing, challenged the constitutionality of the immigration detention regime established under sections 57 and 58 of the IRPA and sections 244 to 248 of the Immigration and Refugee Protection Regulations , SOR/2002-227 ( Regulations ). There, they contended that the regime violates sections 7 , 9 , 12 and 15 of the Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44 (Charter)]. [ 7 ] Although Mr. Brown had been removed from Canada by the time of the hearing, no one asserted the objection of mootness. Nevertheless, the Federal Court considered mootness and, after reviewing the jurisprudence, exercised its discretion to hear the application in the public interest. No one raised mootness in this Court and there is no reason on this record to second-guess the Federal Court’s exercise of discretion. [ 8 ] The Federal Court dismissed the appellants’ Charter challenge. They now appeal to this Court on the basis of the following certified question:

Does the [Charter] impose a requirement that detention for immigration purposes not exceed a prescribed period of time, after which it ispresumptively unconstitutional, or a maximum period, after which release is mandatory? [9] Once a question is certified, all issues that bear upon the disposition of the appeal are at large (Baker v. Canada (Minister ofCitizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, (1999), 174 D.L.R. (4th) 193 (Baker), at paragraph 12;Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R. 344, at paragraph 50; Lewis v.

Canada (PublicSafety and Emergency Preparedness), 2017 FCA 130, [2018] 2 F.C.R. 229, at paragraph 37). [10] In this Court, the appellants renew their constitutional challenge. They are supported by two interveners: the CanadianAssociation of Refugee Lawyers and the Canadian Centre for International Justice.

The interveners advocate for specific proceduralprotections for immigration detainees including mandatory release dates, early disclosure by the Minister of Public Safety of anyevidence relevant to a detainee’s case, and the imposition of an onus on the Minister of Public Safety to establish, with strong supportingreasons, that continued detention is warranted. [11] Casting a shadow on the appellants’ constitutional challenge is the Supreme Court of Canada decision, Charkaoui v. Canada(Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350 (Charkaoui).

There, the Supreme Court prescribed the process andprotections required to ensure that lengthy and indeterminate detention is consistent with detainees’ rights under sections 7 and 12 of theCharter. [12] The Supreme Court’s conclusions in Charkaoui are set forth in paragraph 96: The s. 12 issue of cruel and unusual treatment is intertwined with s. 7 considerations, since the indefiniteness of detention, as well as thepsychological stress it may cause, is related to the mechanisms available to the detainee to regain liberty. It is not the detention itself, oreven its length, that is objectionable.

Detention itself is never pleasant, but it is only cruel and unusual in the legal sense if it violatesaccepted norms of treatment.

Denying the means required by the principles of fundamental justice to challenge a detention may renderthe detention arbitrarily indefinite and support the argument that it is cruel or unusual. [13] Elsewhere, at paragraph 105 of Charkaoui, the Supreme Court recognized that immigration detention may have to be or maypractically end up being indeterminate: “[i]t is thus clear that while the IRPA in principle imposes detention only pending deportation, itmay in fact permit lengthy and indeterminate detention or lengthy periods subject to onerous release conditions.” It rejected thedetainee’s argument that after 5 years his detention had become indefinite and, thus, unconstitutional for that reason. [14] The Supreme Court held that extended periods of detention under the IRPA do not violate the Charter if they are accompanied byregular review of the reasons for detention, the length of detention, the reasons for the delay in removal, the anticipated future length ofdetention and the availability of alternatives to detention such as release on conditions (Charkaoui at paragraphs 110–117). [15] But the Supreme Court also foresaw that cases could arise where a particular detention was not Charter compliant.

In thesecircumstances, the Court concluded that, although prolonged detention under the regime established by the IRPA was constitutional,“this does not preclude the possibility of a judge concluding at a certain point that a particular detention constitutes cruel and unusualtreatment or is inconsistent with the principles of fundamental justice, and therefore infringes the Charter in a manner that is remediableunder s. 24(1) of the Charter” (at paragraph 123). [16] Charkaoui stands in the way of the appellants’ argument that lengthy or indeterminate detention is per se unconstitutional.

Inresponse, the appellants launch a frontal attack on Charkaoui. [17] The appellants contend that where removal is no longer reasonably foreseeable, release is the only constitutionally compliantoutcome, and the failure of the IRPA to expressly require release “in these circumstances” renders the scheme constitutionally deficient.Analogizing to the principles expressed in R. v.

Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 (Jordan) the appellants contend that theirsection 7 and 9 Charter rights can only be protected by judicially mandated limits on the length of detention or, alternatively, that thescheme should be declared unconstitutional under

section 52 [of the Constitution Act, 1982]. They say that Charkaoui must be read inlight of the principles expressed in Jordan. [18] The appellants advance a second attack on the detention scheme. The appellants say the fact that the legislation grants adiscretionary power that may be exercised in an unconstitutional manner renders the enabling provision unconstitutional. The appellantscontend that for the detention provisions of the IRPA to pass constitutional muster, it must be impossible for the ID to order detentionwhen there is no reasonable prospect of removal. [19] The appellants and interveners also argue that the detention scheme offends

section 7 of the Charter because it places an onus ondetainees to justify why they should be released. As well, the appellants and interveners challenge the constitutionality of detentionorders under

section 12 of the Charter because the ID has no control over the location and conditions of detention. They also raise aprocedural fairness challenge based on the limited disclosure by the Minister during detention hearings. [20] The arguments challenging the detention scheme fail and so I would dismiss the appeal. However, as will be seen, ID membersconducting detention reviews and judges sitting in judicial review, must consider Charter and administrative law standards.

Although theappellants’ challenge to the validity of the sections fails, many of their arguments are vindicated by what is said in these reasonsconcerning what judges conducting detention reviews must consider. [21] All Charter analysis begins with an informed understanding of the legislation in question. The legislation must first be interpretedaccording to the accepted principles of statutory

interpretation (Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2S.C.R. 559, at paragraph 26; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, (1998), 154 D.L.R. (4th) 193,at paragraph 21). And in examining the effects of the legislation, as is necessary when applying the Charter, we must understand how itoperates against the backdrop of accepted common law and administrative law principles (see, e.g., Ontario v. Canadian Pacific Ltd., (SCC), [1995] 2 S.C.R. 1031, at page 1049, (1995), 125 D.L.R. (4th) 385; R. v. Khawaja, 2012 SCC 69, [2012] 3S.C.R. 555, at paragraphs 43–45; R. v. Levkovic, 2013 SCC 25, [2013] 2 S.C.R. 204, at paragraph 78; Ruth Sullivan, Statutory

Interpretation, 3rd ed. (Toronto: Irwin Law, 2016), at page 315). [22] When the detention provisions are read in light of their text, context and purpose, there is no infringement of sections 7, 9 or 12of the Charter. The detention scheme possesses the same hallmarks of constitutionality that allowed the Supreme Court in Charkaoui tofind that extended periods of detention under the IRPA’s security certificate detention scheme did not contravene sections 7 and 12 ofthe Charter.

These hallmarks include robust and timely review of the continued need for detention, the ability to “consider terms andconditions that would neutralize the danger” and the “fashion[ing of] conditions that would neutralize the risk of danger upon release”together with power to order release if satisfied that the need for detention no longer exists (Charkaoui, at paragraphs 117, 119–123). [23] Charkaoui is also clear guidance from the Supreme Court, along with many other leading authorities, that the recourse against animproper exercise of discretion resulting in the over-holding of a detainee is an application to quash that exercise of discretion underadministrative law principles and

section 24 of the Charter, not to strike down the

section under

section 52 of the Constitution Act, 1982. [24] Two opening observations are in order. [25] First, this appeal involves nothing more than applying settled principles to specific legislation and a specific evidentiary record.There is no real dispute between the parties on the settled principles. Thus, I will not elaborate on either the general content of

section 7(see, e.g., Tapambwa v. Canada (Citizenship and Immigration), 2019 FCA 34, [2020] 1 F.C.R. 700, 69 Imm. L.R. (4th) 297, atparagraphs 76–90; Kreishan v. Canada (Citizenship and Immigration), 2019 FCA 223, [2020] 2 F.C.R. 299, 438 D.L.R. (4th) 148, atparagraphs 78–87) or the two-stage process to be followed when applying

section 7 (Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R.165, at paragraph 68 and Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paragraph 58). It is sufficient tosay that Mr. Brown’s Charter rights are engaged, and that as a foreign national in Canada he has standing to challenge this legislativescheme using sections 7, 9 and 12 of the Charter (Singh v. Minister of Employment and Immigration, (SCC), [1985] 1S.C.R. 177, at pages 201–202, (1985), 17 D.L.R. (4th) 422; see also R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754(Appulonappa), at paragraph 23).

Nor is there any dispute over the scope and content of sections 7, 9 and 12. [26] The second observation relates to the Supreme Court decision in Canada (Public Safety and Emergency Preparedness) v.Chhina, 2019 SCC 29, [2019] 2 S.C.R. 467, 433 D.L.R. (4th) 381 (Chhina), rendered while this appeal was under reserve and on whichthe parties made additional written submissions. A comment is required on the relevance of Chhina to the issues in this appeal. [27] The constitutionality of the immigration detention scheme was not in issue before the Supreme Court in Chhina.

The focus ofthat case was the availability of habeas corpus as an alternative remedy to judicial review to determine the legality of a detention order.The case did not require a full

interpretation of the IRPA detention provisions and none was done. The questions raised here have notbeen answered. Nor did the Supreme Court in Chhina reverse or cast any doubt on Charkaoui, which directly applies to the questionbefore this Court. II. The detention provisions of the IRPA comply with sections 7 and 9 of the Charter [Back to table of contents] [28] Under sections 34 to 37 of the IRPA, a foreign national may be inadmissible and liable to removal on grounds of security, aviolation of human or international rights, serious criminality or organized criminality.

Unless the removal order is stayed by the FederalCourt, the foreign national against whom it is made “must leave Canada immediately and the order must be enforced as soon aspossible” (IRPA, subsection 48(2)). [29] Under subsection 55(1), the ID may issue a warrant for the arrest and detention of a foreign national where there are reasonablegrounds to believe they are inadmissible and pose a danger to the public or are a flight risk.

No warrant is required for foreign nationalsthat are not protected persons, as defined under subsection 95(2) of the IRPA, and are a danger to the public or a flight risk, or whoseidentity cannot be confirmed (IRPA, subsection 55(2)). [30] Within 48 hours of arrest, or otherwise without delay, the ID is required to review the reasons for detention advanced by theMinister responsible for the CBSA, the Minister of Public Safety (IRPA, subsection 57(1)).

If the ID concludes that a detention order isappropriate, a second review must take place within the following seven days, and then again, if necessary, within every subsequent 30-day period (IRPA, subsection 57(2)). [31] Subsection 58(1) stipulates that grounds for detention may exist in five circumstances: Release — Immigration Division 58

(1) The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking intoaccount prescribed factors, that (

a) they are a danger to the public; (

b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to themaking of a removal order by the Minister under subsection 44(2); (

c) the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security,violating human or international rights, serious criminality, criminality or organized criminality; (

d) the Minister is of the opinion that the identity of the foreign national — other than a designated foreign national who was 16 years ofage or older on the day of the arrival that is the subject of the designation in question — has not been, but may be, established and theyhave not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or theMinister is making reasonable efforts to establish their identity; or (

e) the Minister is of the opinion that the identity of the foreign national who is a designated foreign national and who was 16 years of

age or older on the day of the arrival that is the subject of the designation in question has not been established. [32] The language of Parliament in subsection 58(1) is clear and the context and purpose of

section 58 does not change the plainmeaning of that language. Under subsection 58(1), detention must cease unless the ID is satisfied, on a balance of probabilities, that aground for detention exists. If a ground for detention is not established, the inquiry is at an end. Release is the default. [33] But detention does not simply follow on proof of a ground for detention.

Section 248 of the Regulations makes this clear. Beforea detention order is made, the ID must proceed to the second stage and examine whether detention is warranted based on certainprescribed factors (see also Martin Jones and Sasha Baglay, Refugee Law, 2nd ed. (Toronto: Irwin Law, 2017), at page 389). Theprescribed factors are as follows: Other factors 248 If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made ondetention or release: (

a) the reason for detention; (

b) the length of time in detention; (

c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, thatlength of time; (

d) any unexplained delays or unexplained lack of diligence caused by the Department, the Canada Border Services Agency or theperson concerned; (

e) the existence of alternatives to detention; and (

f) the best interests of a directly affected child who is under 18 years of age. [34] These factors were first articulated by Rothstein J., then of the Federal Court, in Sahin v. Canada (Minister of Citizenship andImmigration), (FC), [1995] 1 F.C. 214, 30 Imm. L.R. (3d) 33 (T.D.) (Sahin), at page 231. They were subsequentlygiven legislative expression in

section 248 of the Regulations, which came into force in 2002 (SOR/2002-227). [35] In considering alternatives to detention, the ID may impose any conditions on the detainee that it considers necessary to mitigatethe risks (IRPA, subsection 58(3)). Either the Minister or the detainee may subsequently apply to vary these conditions on the basis thatthey are no longer necessary to ensure compliance. [36] If the ID orders detention, the detainee is remitted to the custody of the CBSA.

The CBSA may decide to place the detainee in anImmigration Holding Centre (IHC), or transfer the detainee to provincial authorities to be housed in a provincial correctional institution.The ID has no control over the privileges a detainee has access to while detained. If a detainee is dissatisfied with the conditions of theirdetention, they can bring a judicial review application in the Federal Court, if housed in a federal institution, or, if in a provincialinstitution, in the provincial superior court using legislation such as the Judicial Review Procedure Act, R.S.O. 1990, c.

J.1. [37] It is clear from this review that the immigration detention scheme has all of the protections mandated by Charkaoui to ensure thatextended periods of detention do not violate sections 7, 9 and 12 of the Charter. Detention reviews are timely and frequent: subsection57(2) of the IRPA requires that detention be reviewed within 48 hours of arrest, within seven days after that, and every 30 days for thedetention’s duration. The onus is on the Minister to establish both a ground of detention and that detention is warranted based onmandatory, case-specific factors.

Detention may only be ordered where there are no appropriate alternatives, and, in consideringalternatives to detention, subsection 58(3) authorizes the ID to impose any conditions that it considers necessary to neutralize the riskassociated with release. The legality of the detention is subject to judicial scrutiny in the Federal Court. [38] The Supreme Court has recently suggested in obiter in Chhina (at paragraph 60) that the factors under

section 248 of theRegulations may be deficient or vague because they do not expressly require release if removal is not foreseeable. This obiter statement,made in passing, does not repeal the central holding of the Supreme Court in Charkaoui, namely that an ongoing detention does notautomatically run afoul of the Charter. In Charkaoui, the

section 248 factors formed the heart of the issue before the Court. It would bestartling if some idle words in Chhina displaced the detailed, well-considered and necessary holding in Charkaoui, almost as if by a side-wind. [39] Nevertheless, the appellants say that the legislation does not go far enough. They note that the IRPA is constitutionally flawed inthat it does not expressly say that there can be no detention in the absence of a reasonably foreseeable prospect of removal and does notimpose a maximum period of time during which a person can be detained. For the reasons that follow, these arguments fail.

III. Limitations on the power of detention [Back to table of contents] [40] A statutory power, such as the power to detain in this case, can only be used for the purposes for which it was intended.

Thisprinciple of administrative law stems from the requirement that all government action must be authorized by a grant of legal authority.Whether express or implied, the text of a statute, seen in light of its context and purpose, prescribes the limits of the legal authority of adecision-maker exercising discretionary power (Brown and Evans, Judicial Review of Administrative Action in Canada, looseleaf(Toronto: Thomson Reuters, 2019), at § 15:2241; Entertainment Software Association v.

Society Composers, Authors and MusicPublishers of Canada, 2020 FCA 100 (Entertainment Software Assoc.), at paragraph 88 and cases cited therein). The classic statement ofthis principle is found in Roncarelli v. Duplessis, (SCC), [1959] S.C.R. 121, (1959), 16 D.L.R. (2d) 689 (Roncarelli)where Rand J. said (at page 140):

In public regulation of this sort there is no such thing as absolute and untrammelled ‘discretion’, that is that action can be taken on anyground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, betaken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the natureor purpose of the statute.[...][T]here is always a perspective within which a statute is intended to operate; and any clear departure from itslines or objects is just as objectionable as fraud or corruption. [41] Citing Roncarelli, the Supreme Court in Canada (Minister of Citizenship and Immigration) v.

Vavilov, 2019 SCC 65, 441 D.L.R.(4th) 1 (Vavilov), observed (at paragraph 108): …. while an administrative body may have considerable discretion in making a particular decision, that decision must ultimately comply“with the rationale and purview of the statutory scheme under which it is adopted”: Catalyst …. Likewise, a decision must comport withany more specific constraints imposed by the governing legislative scheme, such as the statutory

definitions, principles or formulas thatprescribe the exercise of a discretion: see Montréal (City), at paras. 33 and 40-41; Canada (Attorney General) v. Almon EquipmentLimited, 2010 FCA 193, [2011] 4 F.C.R. 203, at paras. 38-40. [42] The IRPA has many purposes and objectives, including ensuring the safety and security of Canadians and the promotion ofinternational justice by denying safe harbour for criminals or those who pose a security risk (IRPA, paragraphs 3(1)(h), (i)). The powerto detain, as set out in subsection 58(1), is one of the mechanisms by which those purposes are realized.

That detention can only beordered where it is linked, on the evidence, to one of the enumerated grounds listed in subsection 58(1) is an application of this principle.The power to detain must always remain tethered to the IRPA’s purposes and objectives. [43] The implicit requirement that the power to detain can only be exercised where it facilitates the purposes of the IRPA has guidedthe IRPA’s

interpretation for decades. In Sahin,at pages 226–229, Rothstein J. drew on R. v. Governor of Durham Prison, Ex p. HardialSingh, [1984] 1 All E.R. 983, [1984] 1 W.L.R. 704 (Q.B.). There, in considering the immigration detention power provided by theImmigration Act 1971 [(U.K.), c. 77, s. 25], Woolf J. (as he then was) concluded that the Act was subject to two implicit limitations: thepower to detain was limited to the purposes of removal and the responsible minister must move with “all reasonable expedition” toensure removal [at paragraph 8]. [44]

Section 58 of the IRPA authorizes detention for several purposes, including pending determination of identity, pending adetermination of admissibility or on the grounds of public safety. The power of detention will be exercised principally, but notexclusively, pending removal. Where detention is for the purposes of removal, and there is no longer a possibility of removal, detentionon this ground no longer facilitates the machinery of immigration control and the power of detention cannot be exercised. Detention mustalways be tethered, on the evidence, to an enumerated statutory purpose.

To conclude, the IRPA is not constitutionally deficient becauseit does not state expressly that which the law already requires. [45] This conclusion is not altered by the Charter. [46] Interwoven with the modern approach to the

interpretation of legislation is the presumption that Parliament intends to enactlegislation in conformity with the Charter. If a legislative provision can be read both in a way that is constitutional and in a way that isnot, the former reading should be adopted (Slaight Communications Inc. v. Davidson, (SCC), [1989] 1 S.C.R. 1038, atpage 1078, (1989), 59 D.L.R. (4th) 416 (Slaight); R. v. Swain, (SCC), [1991] 1 S.C.R. 933, at page 1010, (1991), 125N.R. 1; R. v. Nova Scotia Pharmaceutical Society, (SCC), [1992] 2 S.C.R. 606, at page 660, (1992), 93 D.L.R. (4th) 36;R. v.

Lucas, (SCC), [1998] 1 S.C.R. 439, (1998), 157 D.L.R. (4th) 423, at paragraph 66). [47] The presumption of compliance is that “the legislature intends to make legislation that complies with the constitution, and to theextent possible legislation is therefore interpreted to achieve that result” (emphasis in original) (Ruth Sullivan, Sullivan on theConstruction of Statutes, 6th ed. (Markham, Ont.: Lexis Nexis, 2014) 523, at § 16.3 (Sullivan on the Construction of Statutes)). Thisprinciple is engrained in Supreme Court of Canada jurisprudence dating back over half a century (see McKay et al. v.

The Queen, [1965]1 S.C.R. 798, at pages 803–804 (1965), (SCC), 53 D.L.R. (2d) 532). In R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, atparagraph 33, McLachlin C.J.C. confirmed the presumption’s application in situations where Charter rights are implicated. Morerecently, the Supreme Court has said that the detention provisions of the IRPA, the very legislation in question here, ought to beinterpreted “harmoniously with the Charter values that shape the contours of its application” (Chhina, at paragraph 128, Abella J.,dissenting but not on this point). (

a) Jordan distinguished [Back to table of contents] [48] Nevertheless, the appellants and interveners contend that the Supreme Court has changed the law in the relatively recent,post-Charkaoui decision of Jordan. They say that the Supreme Court has now recognized that in some situations maximum time limitsmust be imposed to ensure Charter compliance. Mr.

Brown argues the appropriate maximum limit in detention is six months, while theEnd Immigration Detention Network argues that it is three months; after expiry of those limits, they say the detention is arbitrary andviolates sections 7 and 9. [49] Jordan does not alter the constitutional holdings in Charkaoui. It is not authority for the proposition that sections 7 and 9 of theCharter require fixed limits on detention. [50] In Jordan, the Supreme Court established ceilings beyond which pre-trial delay becomes presumptively unreasonable underparagraph 11(

b) of the Charter. Beyond the ceiling, the burden shifts to the Crown to rebut the presumption of unreasonable delay basedon exceptional circumstances. The ceiling was set at 18 months for offences tried in provincial court, and 30 months for those tried in thesuperior court or those tried in provincial court after a preliminary inquiry (Jordan, at paragraph 105). [51] The objective of the guidelines established in Jordan was to protect the constitutional right to trial within a reasonable time underparagraph 11(

b) of the Charter. But the considerations which prompted the Court to establish those guidelines contrast markedly withthose surrounding immigration detention. As I will explain, the differences between the criminal justice system and that of immigrationdetention could not be greater.

[52] Together, the federal and provincial governments have complete control over almost every aspect of the criminal justice systemand the variables that affect delay. The federal government has responsibility for substantive criminal law and criminal procedure via theCriminal Code, R.S.C., 1985, c. C-46.

The construction of courtrooms, appointment of judges, staffing of provincial courts andprosecutors, and the resources available to police to organize disclosure are all within the legislative competence of either the federal orprovincial governments. [53] In contrast, while removal is one of the objectives of detention, Canada does not have complete control over its realization.Removal may be frustrated by political turmoil in the receiving state. Removal may be delayed by a dearth of evidence as to identity(see, e.g., Canada (Public Safety and Emergency Preparedness) v.

Rooney, 2016 FC 1097, [2017] 2 F.C.R. 375). Travel documents mustbe obtained from a great number and diversity of countries, some of which may not be in a hurry to have a particular national returned.Each will have a different view of what constitutes a timely administrative response to requests for travel documents. Removal isdependent on the cooperation of the receiving state, which, for a myriad of reasons, may be reluctant to or incapable of issuing a traveldocument. Mr. Brown’s situation is a good example.

In spite of various, often unanswered, entreaties on the part of the CBSA, it took theJamaican government nearly five years to confirm Mr. Brown’s nationality and issue a travel document. With the document finally inhand, the CBSA deported Mr. Brown the next day. (

b) Other jurisdictions and international law [Back to table of contents] [54] The appellants rely on international law and the law of foreign jurisdictions to argue that a textual reading of the IRPA pertainingto immigration detention is inconsistent with basic international norms. [55] There is a well-established presumption that, where possible, Canada’s domestic legislation should be interpreted to conform tointernational law (R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292 (Hape), at paragraph 53). “Where possible” is a key qualifier(Entertainment Software Assoc., at paragraphs 76–92).

Absent contrary indication, legislative provisions are also presumed to observe“the values and principles of customary and conventional international law” (Hape, at paragraph 53; B010 v. Canada (Citizenship andImmigration), 2015 SCC 58, [2015] 3 S.C.R. 704, at paragraph 47; Sullivan on the Construction of Statutes, at §18.6; see also deGuzman v.

Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655, at paragraphs 82–87 andEntertainment Software Assoc., at paragraphs 89–-90). [56] Therefore, both Canada’s international treaty obligations and the principles underlying international law can play a role in theinterpretation of Canadian laws. This is reinforced by paragraph 3(3)(

f) of the IRPA, which directs that the Act “is to be construed andapplied in a manner that … complies with international human rights instruments to which Canada is signatory.” [57] There is, however, an important counterweight to these principles—the doctrine of Parliamentary supremacy. An unambiguousprovision must be given effect even if it is contrary to Canada’s international obligations or international law (Németh v. Canada(Justice), 2010 SCC 56, [2010] 3 S.C.R. 281, at paragraph 35; Schreiber v. Canada (Attorney General), 2002 SCC 62, [2002] 3 S.C.R.269, at paragraph 50; National Corn Growers Assn. v.

Canada (Import Tribunal), (SCC), [1990] 2 S.C.R. 1324, at page1371, (1990), 74 D.L.R. (4th) 449; Gitxaala Nation v. Canada, 2015 FCA 73, at paragraph 16; Hape, at paragraph 54; and see generallythe comprehensive discussion in Entertainment Software Assoc., at paragraphs 76–92). [58] There is no doubt as to the design, operation or effect of the detention provisions. The appellants have not identified ambiguitiesor duelling

interpretations that would open the door to an

interpretation most consistent with international law. Reduced to its essence,the appellants’ argument is simply that in some jurisdictions immigration detention is dealt with somewhat differently. Leaving

section 1of the Charter aside, in light of Parliament’s clear legislative choice as to the design of the immigration detention scheme, the practicesor legislative frameworks of other jurisdictions are irrelevant. [59] In any event, as the Federal Court concluded, the Canadian immigration detention scheme is consistent with that of the UnitedKingdom. The U.K. legislation does not mandate fixed periods of maximum detention but, as in

section 248 of the Regulations,articulates a number of discretionary considerations relevant to whether a detention order should issue. Turning to the European Union,while the EU Return Directive does set a maximum period of detention of 18 months, member states are not required to comply with thislimit where third country nationals are denied entry at a country’s border or where, like Mr. Brown, they are being returned followinginadmissibility rulings arising from criminal convictions. The Ontario Court of Appeal, in hearing Mr.

Brown’s habeas corpusapplication, did not find his arguments grounded in international law to be persuasive (Brown v. Canada (Public Safety), 2018 ONCA 14,420 D.L.R. (4th) 124, at paragraphs 37–38). (

c) Conclusion on sections 7 and 9 [Back to table of contents] [60] The immigration detention regime is constitutionally sound and does not infringe

section 7 or 9 of the Charter. No principle ofstatutory

interpretation requires that, to ensure constitutionality, the legislature must state that which the law already requires. To requirean express statement that the power of detention can only be exercised where there is a real possibility of removal would be to read-in aredundancy. The statute books of our land would read very differently if, to ensure constitutionality, they had to codify all the applicablecommon law and constitutional law principles that frame the

interpretation and understanding of legislation. IV. Discretion and constitutionality [Back to table of contents] [61] The appellants advance an alternate argument. They contend that the question to be answered is not whether the legislation canbe applied in a constitutionally sound manner, but rather whether the ID is empowered by the legislation to violate the detainees’ Charterrights. Put otherwise, because the discretion in

section 248 is not expressly subordinated to the obligation to release in the face of anunreasonably lengthy detention or a removal that is not reasonably foreseeable, the scheme is constitutionally defective. The appellantsfocus on the scope of the word “consider” and the fact that the duration of detention is but one factor to be considered in

section 248 ofthe Regulations. They say that a constitutionally compliant statute is one under which unconstitutional over-holding is impossible. [62] This argument is inconsistent with established methodology of Charter analysis. As I will explain, the appellants’ argumentinvites this Court to do precisely what the Supreme Court has instructed us not to do since the inception of the Charter.

[63] The first question a court must ask in any Charter challenge is whether the infringement arises from the provisions of thelegislation or whether it arises from a discretion granted by the legislation. [64] A statutory provision cannot be interpreted in a manner that grants discretion to infringe the Charter unless such infringement ismandated by Parliament. The comments of Lamer J. (as he then was) in Slaight are apposite (at page 1078): ….

As the Constitution is the supreme law of Canada and any law that is inconsistent with its provisions is, to the extent of theinconsistency, of no force or effect, it is impossible to interpret legislation conferring discretion as conferring a power to infringe theCharter, unless, of course, that power is expressly conferred or necessarily implied. Such an

interpretation would require us to declarethe legislation to be of no force or effect, unless it could be justified under s. 1. Although this Court must not add anything to legislationor delete anything from it in order to make it consistent with the Charter, there is no doubt in my mind that it should also not interpretlegislation that is open to more than one

interpretation so as to make it inconsistent with the Charter and hence of no force or effect.Legislation conferring an imprecise discretion must therefore be interpreted as not allowing the Charter rights to be infringed. [Emphasisadded.] [65] When a party attacks the validity of a legislative provision, the relevant inquiry is whether the law being attacked produces anunconstitutional effect.

Where unconstitutional acts are committed under constitutional laws, the Supreme Court has noted that “[t]heacts of government agents acting under such regimes are not the necessary result or ‘effect’ of the law, but of the government agent’sapplying a discretion conferred by the law in an unconstitutional manner. Thus, section 52(1) is thus not applicable. The appropriateremedy lies under s. 24(1)” (R. v.

Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 (Ferguson), at paragraphs 59–60; see also Schachter v.Canada, (SCC), [1992] 2 S.C.R. 679, at pages 719–720, (1992), 93 D.L.R. (4th) 1, Lamer C.J.C.). [66] Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120 (Little Sisters) is alsoinstructive. In that case, the appellants argued that the Customs Act, R.S.C., 1985 (2nd Supp.), c. 1 and Customs Tariff, R.S.C. 1985 (3rdSupp.), c. 41 infringed their

section 2(

b) and

section 15 Charter rights. The argument focused in part on the unconstitutionality of theprohibition against obscenity, set out in the Criminal Code, R.S.C., 1985, c.

C-46 when applied by customs officers, with Little Sistersarguing that a regulatory structure open to maladministration was unconstitutionally under-protective of their constitutional rights (atparagraph 71). [67] The Supreme Court held that there is no constitutional rule that requires Parliament to address, affirmatively, the customstreatment of constitutionally protected expressive material by legislation rather than by way of regulation, ministerial directive or evendepartmental practice.

Parliament is entitled to proceed on the basis that its enactments “will be applied constitutionally” by the publicservice (at paragraph 71). [68] The Supreme Court found that the source of the problem lay with customs officials who had been acting outside of theconstitutionally sound statutory framework by specifically targeting homosexual erotica in violation of subsection 15(1) of the Charter.Binnie J., writing for the majority of the Court, stated “there is nothing on the face of the Customs legislation, or in its necessary effects,which contemplates or encourages differential treatment based on sexual orientation” (at paragraph 125). [69] As in the case before us, the appellants’ complaint in Little Sisters was about what Parliament did not enact, rather than what itdid enact.

For this reason, Binnie J. distinguished cases like R. v. Morgentaler, (SCC), [1988] 1 S.C.R. 30, (1988), 44D.L.R. (4th) 385 where the legislative scheme itself was held to be unworkable (Little Sisters, at paragraphs 72, 128). [70] The appellants rely on Appulonappa for the proposition that the legislation at issue is defective because it does not preclude thepossibility of unconstitutional over-holding. [71] In Appulonappa the Supreme Court found that

section 117 of the IRPA, which criminalized the smuggling of aliens into Canada,was unconstitutionally overbroad and contrary to

section 7 [of the Charter] insofar as it captured humanitarian efforts, mutual aidamongst asylum-seekers or individuals who assisted close family members. The Court found that subsection 117(4), which required thatthe Attorney General must consent for a prosecution to proceed under

section 117, could not save the provision because it was notimpossible that the Attorney General could consent to prosecution in a case that was overbroad of the legislative purpose (at paragraphs74–77). [72] Appulonappa does not stand for the proposition that constitutional compliance depends on the “impossibility” of anunconstitutional exercise of discretion. [73] In that case, the residual prosecutorial discretion of the Attorney General was advanced as an alternate argument to cure theadmittedly overbroad and constitutionally infringing provision of the Criminal Code.

Put otherwise, it was argued that the overbreadth ofsection 117 was remedied by the Attorney General’s discretion to choose not to prosecute. The Supreme Court rejected that argument.The standard of “impossibility” was premised on a finding that the charging provisions were, in and of themselves, infringing. [74] Here, in contrast, the scheme is constitutional. Where there are regular detention reviews that give full and fair consideration tothe non-exhaustive considerations in

section 248, prolonged detention is constitutional. Rather than being a source of unconstitutionality,the existence of discretion ensures that the Charter rights of detainees receive full consideration in light of their particular circumstances. [75] In Canadian Civil Liberties Association v. Canada (Attorney General), 2019 ONCA 243, 433 D.L.R. (4th) 157 (Civil Liberties)the Ontario Court of Appeal considered a constitutional challenge to sections 31–37 of the Corrections and Conditional Release Act, S.C.1992, c. 20.

The Court held that the provisions, which confer discretion on the administrative head of a federal penitentiary to orderadministrative segregation of inmates based on a number of factors, infringed

section 12 of the Charter. The Court, in analyzing thescheme, considered whether the scheme itself was unconstitutional or whether it simply permitted unconstitutional maladministration. [76] Before the [Ontario] Court of Appeal, the Attorney General argued that the Act, properly interpreted, had safeguards thatrendered it capable of constitutional compliance (Civil Liberties, at paragraph 102). The applications judge [at paragraph 70] hadaccepted this argument, and concluded that the legislative scheme, even though it permits prolonged segregation, would not “inevitably

result in the treatment of an inmate which is grossly disproportionate to the safety risk the inmate presents” (emphasis added)(Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen, 2017 ONSC 7491 , 140 O.R. (3d) 342, atparagraph 269). [77] The Ontario Court of Appeal disagreed. It held, in part because the discretion granted under the Act only required theinstitutional head to “consider” the inmates’ health prior to making segregation decisions, that it was “not impossible” the legislation’sapplication could result in grossly disproportionate treatment (at paragraphs 105, 110, 113). Based on this and other factors, the Courtfound the legislation to infringe

section 12. [78] For the reasons I have given, I do not agree that the litmus test for constitutionality is that it must be impossible to exercisediscretion in an unconstitutional manner. The word “consider”, if one follows the reasoning of the Ontario Court of Appeal, is not to beread in a manner that is consistent with the Charter. However, this is the opposite of what the Supreme Court, from Slaight, through toFerguson and Little Sisters and beyond, has instructed.

A statutory grant of discretionary power should be read to require that it beexercised in a constitutional way, unless the statutory power itself impliedly or expressly authorizes infringement of the Charter, in whichcase the statutory grant itself may be subject to Charter challenge (Slaight, at page 1078). In this case, the statutory grant of discretionarypower uses the word “consider”, an open-ended grant of discretion.

Far from precluding the decision maker from having regard toCharter standards when assessing the appropriateness of detention, it requires it. [79] The guidance arising from Slaight, Ferguson and Little Sisters directly applies to and disposes of the appellants’ argument thatthe legislation is defective because it does not expressly prohibit detention when removal is not reasonably foreseeable.

There is noproposition of law that legislation, to pass constitutional muster, must exclude all possibility of unconstitutional exercises of discretion.If that were the case, the Supreme Court would have been mistaken in Charkaoui when it determined that the remedy for an immigrationdetention beyond a permissible length lay in subsection 24(1) [of the Charter] (at paragraph 123). [80] The Charter does not require that the possibility of maladministration pursuant to a statutory grant of discretion be eradicatedfrom statutes.

Rather, the Charter requires that discretion be guided by objective criteria that are capable of identification, articulationand judicial supervision. This is readily demonstrated by three analogous situations: subsection 24(2) of the Charter, pre-trial detentionor bail provisions, and the provisions o

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