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

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