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.

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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. Ebrahim Toure, who had been held for 5-1/2 years, was among those who unsuccessfully challenged the lawfulness of his detention at the provincial court. In September, he was finally released at his monthly detention review, where an independent adjudicator concluded there was no prospect to deport him.

“What we are saying is it’s advantageous and preferable for immigration detainees to have direct access to habeas corpus,” said Barbara Jackman, one of the three lawyers representing Chhina. “Habeas corpus is a right, not a discretion.”

Chhina arrived in Canada in 2006 and was soon granted asylum. However, he was ordered deported in December 2010 after a series of criminal convictions here. Border officials made three failed attempts to obtain travel documents from Pakistan for Chhina’s deportation while keeping him behind bars.

In 2016, Chhina claimed to the Alberta provincial court that his lengthy detention was unlawful. The request was denied after a judge ruled the matter was beyond the provincial court’s jurisdiction.

Chhina’s lawyer Nico Breed then took the case to the Alberta appeal court and won. His client was finally deported in September 2017, but the Public Safety Minister and Attorney General of Canada proceeded with the appeal to the Supreme Court.

In their submissions, government lawyers said immigration detainees are entitled to regular independent reviews, which must justify their continued detention or grant their release.

“In immigration matters, provincial superior courts ought to decline the exercise of jurisdiction to grant prerogative relief, including habeas corpus,” the federal government argued in its submission to the Supreme Court.

“There is no need to depart from that approach when reviewing immigration detention decisions of allegedly lengthy and uncertain duration.”

However, immigration lawyers have argued the odds are stacked against detainees the longer they are held.

“The system is structurally against the detainee. The tribunal looks at the reason the person is held and racks up more reasons not to release him,” said Jackman.

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Even if the Supreme Court rules in favour of her client, Jackman said she doesn’t believe provincial courts will be inundated by immigration detainees because the majority are released in under three months.

Last year, 3,557 people were held in immigration detention in Canada. Eighty-eight per cent of detainees were released within 90 days. But in 80 cases, people were held for more than a year.

Correction — Nov. 16, 2018: This article was edited from a previous version that mistakenly said Ebrahim Toure was released on habeas corpus in September. In fact, Toure was released in September by an independent adjudicator at his monthly detention review.