How long is too long?

That was the question with which Superior Court Justice Ian Nordheimer grilled government lawyers on Thursday regarding Kashif Ali, an immigration detainee who has been locked up in maximum-security jail for more than seven years because Canada has been unable to deport him.

“It seems to me the fundamental question,” said Nordheimer, one of the province’s most respected judges, who wanted to know whether Canada believes it should have the right to hold someone in immigration detention indefinitely.

Nordheimer said it “seems to be the government’s position” that if an immigration detainee is being unco-operative they could hold them “literally for the rest of their natural life.” He asked if that was their position.

Government lawyer Daniel Engel would not answer the question directly.

Engel said Ali’s situation had not reached that point yet — the government still believed it could deport him — and he pointed to previous court decisions that found an immigration detainee should not be rewarded for lack of co-operation.

Ali disputes the allegation that he has been unco-operative. He has said repeatedly that he wants to be deported and has given the government all the information he has.

Nordheimer said even if he agreed Ali was not co-operating, the question remains: How long can he be detained?

Engel spoke but again did not answer directly.

So Nordheimer interrupted him. He said there are only two positions the government can logically take: Either it believes it’s entitled to hold immigration detainees like Ali forever, or there is a point at which it’s no longer “constitutionally permissible.”

“If the answer is the former that’s very crystal clear,” Nordheimer said, adding that the courts could then decide if that is justifiable. “If the position is the second, then the question becomes, well, what’s the time frame?”

Canada detains thousands of people every year for immigration purposes. Most are deported relatively easily — the average length of detention is about three weeks — but some cases drag on for months or years. Although neither charged nor convicted of a crime, many of the long-term detainees end up in maximum-security provincial jails, where they are treated the same as inmates awaiting trial or serving a criminal sentence.

Unlike some countries, Canada has not set a maximum length of time a person can be kept in immigration detention. In Europe, the absolute upper limit is 18 months, while more than a dozen countries have shorter time frames. The U.S. and the U.K. do not technically have prescribed limits for immigration detention, but their courts have ruled that if deportation is not reasonably foreseeable after six months the detainee should be released.

Ali, who was profiled last month as part of a Star investigation into immigration detention, says he was born in Ghana to a Ghanaian father and Nigerian mother. The 51-year-old, who has been in Canada for more than 30 years, believes he is a citizen of both Ghana and Nigeria and is willing to be deported to either country, but neither will take him back because he can’t prove his citizenship.

The former taxi driver has a lengthy criminal record — mostly drug-related offences — but the total time he has now spent in immigration detention is more than twice as long as all of his 28 criminal sentences combined.

Ali’s lawyers say his detention is arbitrary and indefinite, and therefore a violation of the Charter of Rights and Freedoms. They have argued that there has never been a reasonable prospect of his removal from Canada, and his detention is “cruel and unusual.”

The government says Ali is “intentionally thwarting” his removal by withholding information. Ali says he just wants to get out of jail and has told them everything he can.

But Nordheimer seemed most interested in the question of what point the government believed detention would no longer be reasonable. He continued to press Engel on whether the government believed they should be able to detain someone potentially forever.

“It sounds like you’re taking position number one,” Nordheimer said at one point, almost playfully.

“I don’t think so,” Engel said. “The position that we’re taking is we haven’t reached that point yet.”

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“That would immediately prompt the question,” Nordheimer said. “If it’s not seven (years), is it 15? 20?”

Engel said he didn’t think there was a “magic number.”

Nordheimer’s decision is scheduled for April 28.