Supreme Court to grapple with murky legal rights of immigration detainees

Posted
November 15, 2018
Article Source
Toronto Star

Should an immigration detainee have the same right to challenge their ongoing detention as their criminally convicted peers?

That's the quandary at the centre of a Supreme Court of Canada case opening on Wednesday in Ottawa.

While Canadian citizens serving a jail sentence are entitled to argue their case before a judge, foreign nationals held for immigration violations must appear before a federal tribunal, which has been criticized for rubber-stamping their continued incarceration. 

Canada's highest court is being asked to clarify if immigration detainees are protected by the Charter of Rights and Freedoms and can access what is legally known as habeas corpus — a legal recourse that allows anyone held by the state to challenge the lawfulness of their detention.

Until now, immigration detention has been a murky area of law between two levels of authority — the federal government, which is responsible for immigration matters and runs the tribunal, and the provinces, which are in charge of detention facilities.

Provincial courts often defer to the Federal Court to deal with immigration detention through judicial reviews, but these reviews only examine if any legal errors are made by immigration officials in detaining or releasing an individual. The federal judges don’t consider the lawfulness of an immigration detention, and all they can do is send a case back for a new decision.

The Supreme Court case is centred on Pakistani immigration detainee Tusif Ur Rehman Chhina, who had been held for almost 30 months while officials tried to deport him.

In Ontario, long-time immigration detainees have been asking the provincial court to release them on habeas corpus since 2015. In September, Ebrahim Toure, who had been held for 5-1/2 years, won his freedom on the same grounds.

Read more: Supreme Court to grapple with murky legal rights of immigration detainees