Superior Court Justice Alfred O’Marra ruled in October that the federal government could continue to jail failed refugee claimant Ebrahim Toure, who had already spent more than four years in indefinite detention, because there was still a reasonable prospect he could be deported to his native Gambia.
The judge based his decision in large part on what federal immigration authorities described as a “pending” interview with Gambian officials, which O’Marra said could conceivably lead to a “breakthrough” in the case and Toure’s removal.
Nearly eight months after O’Marra’s ruling, Toure is still locked up at the Immigration Holding Centre, while the “pending” interview with Gambian authorities has yet to materialize. It’s unclear if it ever will.
Toure’s lawyers, meanwhile, were back in court Wednesday to appeal O’Marra’s decision, arguing there is not and never was a reasonable prospect of Toure’s removal from Canada.
Toure, 47, is Canada’s longest serving immigration detainee. He is not charged or convicted of any crime, but he has now spent more than five years behind bars because Canada has been unable to deport him, which his lawyer, Jared Will, said in court on Wednesday is “well outside the range of what can be considered a reasonable and proportionate time to keep someone in administrative detention.” The only obstacle to Toure’s deportation is that he doesn’t have any identity documents and Gambia has refused to issue him any.
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Toure has said he wants to be deported and that he has given immigration officials all the information he has.
The government, meanwhile, has accused him of intentionally thwarting their efforts to remove him. They believe his name is actually Bakaba Touray and officials say he is withholding information that could help them confirm his identity.
Toure spent the first four-and-a-half years of his detention in a maximum-security jail, where he was treated the same as sentenced criminals and those awaiting trial. He was transferred to the less-restrictive Immigration Holding Centre in October after O’Marra’s October ruling, which found that while the government could still detain Toure, holding him in a maximum-security jail was “grossly disproportionate” to the purposes of ensuring his deportation and amounted to cruel and unusual treatment.
Toure is not considered a danger to the public. The basis for CBSA’s decision to place him in maximum-security jail —rather than the Immigration Holding Centre — was a 13-year-old conviction for selling pirated DVDs and CDs in Atlanta, for which he served no jail time.
Lawyers for the federal government argued Wednesday that O’Marra erred in part of his decision. While they are not seeking to have Toure sent back to a maximum-security jail, they did ask Ontario’s Court of Appeal — Justices David Doherty, Harry LaForme and C. William Hourigan — to overturn O’Marra’s ruling that placing someone in Toure’s position in maximum-security jail violated the Charter of Rights and Freedoms.
Activists with the migrant justice organization No One Is Illegal and members of Toronto’s Gambian community filled the Osgoode Hall courtroom and held a short rally before proceedings began, carrying 1,915 tulips – one for each day Toure has spent in detention.
There is no timeframe for the appeal court’s decision.
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Much of the day’s arguments focused on what level of cooperation an immigration detainee should be expected to provide to authorities seeking his deportation.
Will disputed the government’s allegation that his client Toure has been uncooperative, but he argued that even if he was not cooperating, the alleged non-cooperation does not justify indefinite detention.
Will argued that a CBSA officer previously testified that all Toure needs to do to cooperate is admit that his name is Bakaba Touray.
“So let’s say he did that,” Will said. “There is no evidence whatsoever that would make his length of detention any less uncertain.”
The government argued that Canada’s immigration detention system affords detainees a meaningful process of review by way of monthly hearings at the quasi-judicial Immigration and Refugee Board. A 2017 Star investigation found the hearings to be procedurally unfair and stacked against detainees.
At Toure’s last detention review, the CBSA said they had recently taken the “extraordinary” step of hiring an “international investigations organization” to assist their probe into Toure’s identity.
The Star asked the CBSA the name of the organization. The CBSA refused to disclose the information.
Toure is scheduled to have his next detention review Thursday.