Immigration detainees allowed to argue long-term, indefinite custody illegal

Ontario's top court has opened an avenue for long-term detainees from abroad to challenge the legality of their detentions in Superior Court rather than through the immigration process and Federal Court.

In its ruling Tuesday, the Court of Appeal made it clear the idea wasn't to have the courts interfere in immigration decisions.

"The Federal Court has greater expertise in immigration matters than the superior courts and that, in such matters, a Superior Court should...defer to the Federal Court," the Appeal Court ruled.

"The issues raised by the appellants, however, are fundamentally detention decisions."

The case involved four foreigners kept behind bars pending deportation or extradition for periods ranging from two years to more than eight years. They argued their detention had become illegal because of its length and the uncertainty of its duration.

In March, Superior Court Justice Kenneth Campbell ruled he had no jurisdiction to hear the case. Their sole recourse under case law dating to 1989, Campbell ruled, was through the Immigration and Refugee Protection Act, which says reviews must go through Federal Court.

The four appealed, arguing the 1989 ruling did not apply because their detention appeared to be indefinite. The only issue on appeal was whether they did indeed have a right to turn to Superior Court for relief.

"They do not seek a determination of the ongoing immigration matters," the Appeal Court said. "They seek a determination as to whether the continued detentions of the appellants are illegal."

For its part, the government argued Campbell's decision should stand, saying the act and Federal Court provide all the needed safeguards.

Challenging legality of detention 'constitutional right'

In siding with them, the Appeal Court said their ability to challenge the legality of their detention in Superior Court is a constitutional right that is different in substance from the immigration route.

Among other things, the court said the government would have to show a Superior Court judge that a detention was legal despite its length and uncertain duration rather than simply argue that ongoing incarceration was warranted because, for example, the person might fail to show up for a deportation.

The four involved in the appeal were:

• Carmelo Bruzzese, 65, an Italian citizen and permanent resident since 1974. Italian authorities accused the married father of five of being a high-ranking member of a "Mafia-type" organization but he could not be extradited because Canada does not have an equivalent criminal offence. He has now been deported.

• Glory Anawa, 29, is believed to be a citizen of Cameroon, which does not recognize her identity. Canadian authorities have held her for more than two years -- she had a baby in detention -- on the grounds she might disappear when it comes time to deport her.

• Amina Chaudhary, 53, came to Canada in 1977. Convicted in 1984 of first-degree murder for strangling a nine-year old boy, she was ordered deported in 1987. Immigration authorities have detained her whenever she gets unescorted temporary absences from prison since September 2012 but can't deport her because neither India nor the U.K. will issue her travel documents.

• Immigration authorities arrested Cameroonian Michael Mvogo in September 2006 for a criminal conviction. His long detention drew fire from a working group of the UN Human Rights Council. He was recently deported to Cameroon.