The Supreme Court of Canada is seen in Ottawa on Thursday, Oct. 11, 2018.THE CANADIAN PRESS/Justin Tang

Supreme Court hears case on migrant detainees’ rights to challenge incarceration

Currently, migrants who do not hold Canadian citizenship can only challenge detention through an immigration tribunal or a judicial review.

A man from Pakistan wants Canadian law to give migrants being held in detention the ability to challenge their imprisonment in front of a judge.

The Supreme Court of Canada heard arguments Wednesday on a case asking for immigration detainees to be given access to “habeas corpus”— a legal provision allowing anyone being held in custody the right to challenge their detention before a judge.

Currently, migrants who do not hold Canadian citizenship can only challenge detention through an immigration tribunal or a judicial review.

The case was brought by Tusif Ur Rehman Chhina, a Pakistani man who sought refugee protection in Canada in 2006, but was later detained after authorities learned he had a criminal record.

The Immigration and Review Board held 12 reviews of his detention and each time ordered that he remain incarcerated. He has since been deported back to Pakistan, but his lawyers have continued to pursue the case.

A long list of interveners have also signed on, including Amnesty International, the Canadian Council for Refugees, the Canadian and B.C. Civil Liberties Associations, the Canadian Prison Law Association and Community and Legal Aid Services Programme.

They argue migrant detainees do not always receive a fair hearing by these methods, and sometimes end up incarcerated indefinitely.

“The onus is on the detainee to actually prove why they should be released,” said Swathi Sekhar of End Immigration Detention Network, another intervener in the case.

“On the other hand, in a habeus corpus application, the government is forced to justify legally and substantively why that person is in prison. This is a really critical difference for anyone who is trying to challenge their detention.”

The federal government argues that the current system involves “a complete, comprehensive and expert process” with an independent quasi-judicial board that provides “prompt, regular and meaningful review of detention, based on clearly articulated grounds.”

Extending habeas corpus to migrant detainees would create uncertainty in the legal processes involving these decisions, the government argues in its factum.

A small group of advocates turned up on the steps of the Supreme Court building in Ottawa on Wednesday, braving sub-zero temperatures to express their concerns about how the current system treats migrant detainees.

“The global context for migration is changing and Canada is a safe haven for a lot of people who are fleeing the terrible things that are happening in their countries and people are going to be detained,” Sekhar said.

“Its important that we don’t let the government just do that arbitrarily, that we put in a safeguard that isn’t present in the system right now.”

Brandishing signs with slogans like, “Build communities not cages,” others expressed their fundamental disagreement over the very practice of incarcerating migrants.

“I think it’s absolutely deplorable, I don’t think anybody should be detained,” said Andrew Peters of No One is Illegal Toronto.

“We should have status for all — anybody in this country.”

The court will deliver its decision at a later date.

Related: U.S. border separations ripple through midterm campaigns

Related: Canada to increase annual immigration admissions to 350,000 by 2021

Teresa Wright, The Canadian Press

Like us on Facebook and follow us on Twitter.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

The bobsled race has traditionally been a staple event at the carnival. File photo
Upcoming Rossland Winter Carnival cancelled due to COVID-19 crisis

This is the first time the carnival won’t be held in decades

Grace and her daughter Helen enjoyed one of the story walks put on by the Columbia Basin Alliance for Literacy. Photo: Submitted
Castlegar literacy programs going strong

Columbia Basin Alliance for Literacy is still offering services throughout the West Kootenay.

A view of proposed seniors housing on Vernon St. Illustration: City of Nelson/ Vendure Retirement Communities
Nelson seniors housing project to start construction in the spring

Private development on Vernon Street will provide assisted living services as well as housing

The fundraiser is anticipated to occur again next year. Photo: Deb Penner
Castlegar Blue Barn Pet staff raise $15,579 for charities

Staff decided to hold fundraiser after they had to cancel their pet festival this fall

Over the years, Janice Blackie-Goodine’s home in Summerland has featured elaborate Halloween displays and decorations each October. (File photo)
QUIZ: How much do you really know about Halloween?

Oct. 31 is a night of frights. How much do you know about Halloween customs and traditions?

FILE - In this Jan. 23, 1987 file photo, actor Sean Connery holds a rose in his hand as he talks about his new movie “The Name of the Rose” at a news conference in London. Scottish actor Sean Connery, considered by many to have been the best James Bond, has died aged 90, according to an announcement from his family. (AP Photo/Gerald Penny, File)
Actor Sean Connery, the ‘original’ James Bond, dies at 90

Oscar-winner was knighted by Queen Elizabeth II in 2000

Join Black Press Media and Do Some Good

Pay it Forward program supports local businesses in their community giving

Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

This house at 414 Royal Ave. became notorious for its residents’ and visitors’ penchant for attracting police. It was also the site of a gruesome torture in August 2018. It was demolished in 2019. KTW
6-year sentence for Kamloops man who helped carve ‘rat’ into flesh of fellow gang member

Ricky Dennis was one of three men involved in the August 2018 attack

Cpl. Nathan Berze, media officer for the Mission RCMP, giving an update on the investigation at 11:30 a.m., Oct. 30. Patrick Penner photo.
VIDEO: Prisoner convicted of first-degree murder still at large from Mission Institution

When 10 p.m. count was conducted, staff discovered Roderick Muchikekwanape had disappeared

Among the pumpkin carvings created this year by Rick Chong of Abbotsford is this tribute to fallen officer Cont. Allan Young.
Abbotsford pumpkin carver’s creations include fallen police officer

Rick Chong carves and displays 30 pumpkins every year

An online fundraising campaign in support of the six-year-old boy, Edgar Colby, who was hit by a car on Range Road Oct. 25 has raised more than $62,000 in a day. (Submitted)
$62K raised in 1 day for boy in coma at BC Children’s after being hit by vehicle in Yukon

The boy’s aunt says the family is “very grateful” for the support they’ve received from the community

Most Read