By Matt Cicero
In mid-November of 2018 the Supreme Court of Canada heard the precedent-setting case of the Minister of Public Safety and Emergency Preparedness, et al. v Chhina, a case that could fundamentally change immigration detention in Canada.
With hearings now closed, the court will be deciding whether immigration detainees can be protected by habeas corpus, a recourse in law that can be used to challenge illegal imprisonment.
Immigration detainees and their lawyers are seeking to use the right of habeas corpus to have the legality of the detention of people imprisoned by the Immigration and Refugee Board (IRB) reviewed by the courts
Tusif Ur Rehman Chhina, who was born in Pakistan, filed a Canadian refugee claim in 2008 but was found inadmissable on the grounds of criminality in 2012, given a deportation order and incarcerated twice.
In 2016, he made an application for habeas corpus to the Alberta Court of Queen’s Bench. The court ruled in his favour, but this decision was appealed by the federal government.
By appealing this case to the Supreme Court the federal government “is trying to stop [migrants] from using a charter-protected right to habeas corpus to challenge the legality of their detentions,” said Sathi Sekhar, a lawyer representing the End Immigration Detention Network (one of the interveners in the case),
The Supreme Court case came only months after a scathing external audit of immigration detention that was commissioned in September of 2017 by the Chair of the Immigration and Refugee Board. The audit focused exclusively on a random sample of twenty cases where immigrant detainees had been detained for four months or more. The audit found that, “in some cases, the Charter rights of detained persons were breached by continued [Immigration Division]-ordered detention.”
There was a small demonstration – thirty people – in front of the Supreme Court on the morning of the hearing. The demonstration was organized by the End Immigration Detention Network, the Sanctuary City Network, and the Criminalization and Punishment Education Project.
Under the watchful eyes of several Royal Canadian Mounted Police officers, the activists gathered to listen to speeches at the bottom of the large cement staircase that leads up to the ten foot bronze doors of the courthouse.
Sekhar told the small crowd, “Habeas corpus is enshrined in our Charter and all immigrants and migrants in Canada have the right to protection from the charter. But the government are seeking to deny this right to a subset of people because they are black and brown and have come to Canada trying to seek a better life.”
Habeas corpus is part of Canada’s common law, originating from English law. It is the right to challenge the legality of imprisonment or detention, which was first codified during the conflict between King Charles II and the English Parliament.
Section 10 of the Canadian Charter of Rights and Freedoms states, “Every one has the right on arrest or detention… to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.”
Immigration detainees and their lawyers are seeking to use the right of habeas corpus to have the legality of the detention of people imprisoned by the Immigration and Refugee Board (IRB) reviewed by the courts. The IRB is an administrative tribunal that has the power to incarcerate immigrants and refugees.
According to the Global Detention Project there were 6,251 Canadian immigrant detainees in 2017. The average length of detention, according to a CBC article by Molnar and Silverman, is 19.5 days behind bars.
This average can obscure how long many people spend in immigration detention, however, as they may be imprisoned more than once. Canada is also one of a small number of countries that allows indefinite detention of migrants. In the worst cases, detainees have spent as much as seven years behind bars.
After the protest finished, most of the activists filed into the building for the hearing. The large, imposing building lies on stolen Algonquin land, but there is nothing to remind people of this.
Instead, two Canadian flags hang from flagpoles that stand at the east and west ends of the building, and two statues stand in silent vigil not far from the main entrances. One is the Roman goddess of Truth, “Veritas,” the other the Roman goddess of justice “Justicia.”
It’s an imposing spectacle. Coming into the building, everyone is searched, and their bags x-rayed. There were at least four police and security guards on duty in the marble- floored Grand Hall Entryway. The atmosphere of the courthouse is one of wealth, authority and security.
Inside the Supreme Court the room was packed with lawyers and onlookers. The courtroom itself is large and it is dominated by the long bench where the Justices of the Supreme Court sit in judgment.
After the hearing was over, I spoke to Olukunle Adtunji and his wife in a busy restaurant not far from the courthouse. Adtunji was in immigration detention for close to a year and is a member of the End Immigration Detention Network.
“Myself and my wife and I and a couple of friends were having a conversation the other day about some Canadian geese. If they were to migrate down south to the US because it’s winter does anybody ask them for immigration papers? Why are human beings being asked for papers to be here legally? We’re being treated less than animals,” he said.
Adtunji concluded, “I’d just like to see an end to immigration detention. It’s everyone’s right to migrate from one place to another.”