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Immigrant jailed for seven years he sues Canada for $57.5 million

OTTAWA — A man with no recognized citizenship in any country is suing the governments of Canada and Ontario after he was kept in maximum-security jails for seven years while Canada tried in vain to deport him.

It’s the latest development in the extraordinary case of Kashif Ali, who has spent three decades in legal limbo in Canada. Last year, Ali won a key court decision that challenged Canada’s ability to detain an immigrant indefinitely.

Now, in a sprawling lawsuit filed in Ontario Superior Court, Ali is seeking a total of $57.5 million in damages, alleging numerous violations of his Charter rights and breaches of fiduciary duty over his prolonged detention. The lawsuit alleges the detention caused him to suffer from depression and anxiety, auditory hallucinations, and the deterioration of his physical health.

Ali first claimed refugee status in Canada in 1986, arriving from the United States. The lawsuit acknowledges he provided authorities with a fake name before admitting his real one a week later. He claims he was born in Ghana in 1966 to a Ghanaian father and a Nigerian mother, but has said his birth was never officially registered. Both Ghana and Nigeria have refused to recognize him as a citizen.

Ali was declared inadmissible to Canada in 1995 for a string of criminal convictions, largely petty offences related to drug addiction. From 1995 to 2000, he was in and out of detention while deportation proceedings took place. Canadian officials escorted Ali to Ghana in 1996, but Ghanaian authorities refused him entry due to suspicion over his identity. Ali spent ten months in detention in Ghana before Canada took him back.

He was again detained in February 2010 by the Canada Border Services Agency, and would spend the next seven years being rotated through four maximum-security jails run by Ontario. Court documents say he was usually placed among the general population of criminal offenders, but was occasionally put in solitary confinement, including for one stint of more than 100 consecutive days, and suffered from frequent lockdowns caused by staffing shortages.

As required by law, Ali’s case was reviewed every 30 days by the Immigration and Refugee Board while he was in detention. But the border agency argued Ali was withholding information that would assist with his deportation, and his detention was repeatedly renewed. The lawsuit says there were more than 80 such reviews while Ali was detained.

In April 2017, an Ontario court ordered that Ali be released. “One thing is clear, and that is that Canada cannot purport to hold someone in detention forever,” said the decision from Superior Court Justice Ian Nordheimer, who ruled Ali’s Charter rights had been violated.

“As best as I can tell from Mr. Ali’s criminal record, he has spent almost twice as much time in detention, pending his removal, than he served as punishment for all of his criminal convictions added together. That result is unacceptable.”

Nordheimer was also unconvinced by the government’s argument Ali was blocking their effort.

“I do not accept that Mr. Ali is intentionally withholding critical information that, if revealed, would break the logjam in obtaining the necessary documentation to permit his removal,” he said.

He has spent almost twice as much time in detention, pending his removal, than he served as punishment for all of his criminal convictions added together

Jared Will, Ali’s lawyer, said he did not want to comment on the lawsuit. Will is challenging the constitutionality of indefinite immigration detention at the Federal Court of Appeal, but a Federal Court judge upheld the regime last summer, ruling that there is no “single, simple answer” for when detention has become unreasonable.

The Toronto Star has reported that refugee claimant Ebrahim Toure is currently the longest-serving detainee, having been kept behind bars for more than five years while the government seeks to prove his identity and deport him to Gambia.

Public Safety Minister Ralph Goodale’s office declined to comment on a matter before the courts. It said a new policy framework announced in 2016 aims to improve immigration detention infrastructure, provide better health services and explore more alternatives to detention. It budgeted $138 million over five years. The government is also “working on separate legislation to create an appropriate mechanism to review CBSA officer conduct and conditions, and handle specific complaints,” said the statement.

In the meantime, Ali now lives in Ontario and has been issued a work permit and interim health coverage. He plans to file for permanent residency based on humanitarian and compassionate grounds, the lawsuit says.

“He has continued to seek treatment for his mental health problems and to attempt to recover from the harm inflicted by his lengthy incarceration,” the lawsuit says.

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