It’s a decision immigration lawyers have been anticipating for years.
On Friday, the Supreme Court of Canada ruled 6 to 1 in favour that immigration detainees — those who’ve been jailed for immigration-related offences and are often awaiting deportation — have the right to challenge the lawfulness of their imprisonment before a provincial superior-court judge.
The decision grants the ancient right of habeas corpus to immigration detainees. It also ‘opens the door’ to further challenges to the legality of immigration detention in Canada, experts say.
But what does this ruling mean in practice? And how many migrants will be affected?
Challenging the ‘conditions’ of imprisonment
The case at hand was that of Tusif ur Rehman Chhina, a Pakistani-born man who came to Canada in 2006, was granted refugee status and then stripped of this status because of misrepresentation and because of his involvement in criminal activity.
After serving a criminal sentence, Chhina was detained by immigration officials in anticipation of his removal to Pakistan.
But delays in removal led Chhina to challenge the lawfulness of his imprisonment — saying it was indefinite and indeterminate.
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What’s unusual about Friday’s Supreme Court decision, however, is that it did not consider Chhina’s criminal past or his immigration history. In fact, these points were moot because Chhina had already been deported before the case was heard.
Instead, the court looked exclusively at whether Chhina had a right to challenge the duration and “conditions’ of his imprisonment before a judge in a habeas corpus hearing.
The top court ruled he did.
The court also said the existing detention review process at the Immigration and Refugee Board of Canada (IRB) is insufficient for assessing whether the ‘conditions’ of imprisonment are lawful.
“The Immigration Division has no explicit power to examine harsh or illegal conditions,” wrote Justice Andromache Karakatsanis in the court’s majority decision. “This is to be contrasted with habeas corpus, which provides for review of any unlawful form of detention.”
What this means in practice is that the IRB’s Immigration Division lacks the legal authority to determine whether the ‘conditions’ of imprisonment are unlawful, according to the court.
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Factors that could be considered ‘conditions’ of imprisonment include: where someone is imprisoned (the place and type of facility) access to mental health and medical treatments, segregation and proper sanitation.
Without the ability to assess these conditions, decision-makers at the IRB lack the authority to release detainees based complaints about these issues.
“Immigration detainees are often held in deplorable conditions,” said Barbara Jackman, one of three lawyers who represented Chhina at the Supreme Court.
“This decision is a long time coming,” she said.
The decision also ‘opens the door’ to challenge the lawfulness of indefinite immigration detention in Canada, she said.
Timeliness of appeal
A major theme of Friday’s decision was the timeliness of immigration detention hearings and the appeal processes, versus applications for habeas corpus.
Under current rules, immigration detainees have a hearing at the time of their detention, followed by a second hearing roughly one week later and then additional hearings every month to decide if their imprisonment is still warranted.
To appeal a decision from a detention hearing, detainees must get permission from a federal court judge. According to Jackman, this happens in only 15 per cent of cases.
And once “leave” to appeal the decision is granted, the federal court judge has no authority to order someone released from prison, Jackman said. Instead, the judge sends the case back to the Immigration Division for another hearing.
This process can take months and is often unsuccessful, Jackman said. This leads to further delays, increased costs, more applications for leave and a general sluggishness to the entire process.
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Habeas corpus, however, allows for applications to be heard within a matter of days, sometimes even hours. Superior-court judges also have the power to release prisoners immediately.
“It’s a really great decision,” said Michael Battista, an immigration lawyer who intervened in the Chhina case. “It now adds this extra tool for detainees to address the legality of their detention.”
When arguing before the court, Battista discussed the case of Avery Edison, a 25-year-old transgender woman from Britain who was detained by the CBSA and placed in an all-male facility because she still had male genitalia,
According to Battista, both the conditions of Edison’s detention and the timeliness of her release were issues the Immigration Division — under existing rules — was ill-equipped to deal with.
And while she was eventually transferred to a women’s facility, and then released, Battista says habeas corpus would have been a more effective method for ensuring Edison’s rights were protected.
How many detainees will be affected?
The number of detainees set to benefit from the right to habeas corpus is exceptionally small.
A 2018 independent audit of immigration detention in Canada found that the average length of detention was 1.7 months.
According to statistics from the Canada Border Service Agency (CBSA), average detentions ranged between 20 and 26 from 2012 to 2017. Between 2017 and 2018 the average detention was 14 days.
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There are, however, exceptional cases, such as Chhina — who spent a total of 29 months in immigration detention before being deported — and Ebrahim Toure, who was held for more than five years before being released. Much of this time was spent in a maximum security prison.
According to Battista, it’s this group of detainees, those who end up in provincial prisons for years on end, that stand to gain the most from habeas corpus.
“Even though it’s a small group of people, the rights at stake are huge,” he said.
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