n a forceful rebuke of Canada’s practice of indefinite immigration detention, an Ontario judge on Friday ordered the release of the West African man who says he just wants to go home
In a forceful rebuke to Canada’s practice of indefinite immigration detention, an Ontario court has ordered the release of Kashif Ali, a West African man who spent more than seven years in a maximum-security jail because Canada was unable to deport him.
Superior Court Justice Ian Nordheimer called the lengthy detention “unacceptable” and said that it violated Ali’s charter rights.
“One thing is clear, and that is that Canada cannot purport to hold someone in detention forever,” Nordheimer said, reading from his decision. “Mr. Ali has not been convicted of a criminal offence, and yet he has been held for over seven years in detention facilities, facilities that, if he had been convicted of a criminal offence, would have entitled him to a credit of more than 10-and-a-half years against any sentence that might be imposed.”
Ali, 51, was the longest-serving immigration detainee still being held. He was one of two detainees profiled in Caged by Canada, a recent Star investigation.
Wearing a white dress shirt and dark slacks — rather than the orange prison jumpsuit he had previously worn to court — Ali hugged his tearful 26-year-old daughter as soon as he was released from police custody.
“I don’t know what to say right now,” Ali said outside court on Friday, standing next to his daughter, Sakina Millington. “It was very, very tough to be in there seven years without knowing when you’re coming out. I went through a lot, man.”
As part of his court testimony, Ali described the often brutal conditions of his detention, which included beatings from guards and fellow inmates, near-daily lockdowns and one period during which he was placed in solitary confinement for 103 consecutive days.
Ali’s lawyer Jared Will, who is also in the midst of a Federal Court challenge to the entire immigration detention system, said he was pleased with Nordheimer’s decision.
“What’s clearest is that it was an emphatic rejection of indefinite detention for removal even if the detainee could be found to not have been co-operating,” Will said. “That’s significant, and that’s something that we think is a positive development.”
Ali says he was born in Ghana to a Ghanaian father and Nigerian mother, but his birth was never registered. As a child he moved with his mother to Nigeria and later Germany and the U.S. before entering Canada with a fake passport in 1986. He says he has never had legitimate identity documents.
The former taxi driver has a long record of mostly petty crimes, which he attributes to drug addiction. Because of his criminal record, Canada has been trying to deport him for more than 20 years. Ali has always insisted he is willing to be deported, but he can’t prove his citizenship in either Ghana or Nigeria, so neither country will take him back.
Government lawyers were seeking Ali’s continued detention, alleging that he is intentionally thwarting his removal by withholding information that would help Canada deport him.
Nordheimer disagreed. He said the government “can point to nothing more than skepticism and speculation” to support that allegation and there was “no reasonable prospect” that Ali’s situation would change if he continued to be detained.
Even if an immigration detainee was being unco-operative, Nordheimer said, to allow a government to detain someone indefinitely would still be “fundamentally inconsistent with the well-established principles underlying” sections 7 and 9 of the Charter, which protect the right to life, liberty and security of the person as well as the right not to be arbitrarily detained.
“It would also be contrary to Canada’s human rights obligations,” he added.
Canada detains thousands of people every year for immigration purposes if they have been deemed a danger to the public or unlikely to appear for their deportation. Most spend only a few weeks in detention, but some cases, like Ali’s, can drag on for months or years.
Unlike some other countries, Canada does not have a maximum length of immigration detention — an issue on which Nordheimer grilled government lawyers in a previous hearing.
Earlier this month, the federal government announced it was “exploring” policy changes to reduce the length of immigration detention and limit the use of jails.
Nordheimer released Ali with a number of conditions, including a nightly curfew and a requirement to report to immigration authorities on a monthly basis. He will reside with his daughter’s grandmother and must seek treatment and counselling for his drug addiction. Ali’s lawyers had asked that he also be granted a work permit and health coverage by the federal government, but Nordheimer offered only a “strong recommendation” that government officials consider whether that would be appropriate.
With his new-found freedom still sinking in, Ali said he didn’t have any big plans for the weekend. He hadn’t even decided what to have for dinner.
“I’m just going to go home and relax,” he said. “I hope I’ll feel like I’m not in the jail no more. I know it’ll take a bit, but finally I’m out.”
With Ali’s release, the next longest-serving immigration detainee is Ebrahim Toure, who was also profiled recently by the Star. A failed refugee claimant, Toure likewise has no identity documents and the government has been unable to deport him. Unlike Ali, Toure has no criminal record in Canada, but he has spent more than four years behind bars in maximum security. Toure’s detention was continued for another 30 days last week, but he too could soon be fighting his case in court.
