Supreme Court says migrants can bring detention challenge to judge

Refugee claimants have the right to challenge their prolonged incarceration before a Superior Court judge, the Supreme Court of Canada has ruled.

In a 6-1 decision released Friday, justices ruled in favour of Tusif Ur Rehman Chhina, a Pakistani national who challenged his prolonged detention in a maximum-security remand centre in Calgary. He was detained because he was deemed a security risk.

His case was reviewed regularly by an immigration tribunal, which repeatedly ordered him detained as a flight risk.

The majority of the justices found the tribunal process does not provide for a review that is "as broad and advantageous" as a hearing before a Superior Court.

Chhina had been stripped of his refugee status and ordered deported because he misrepresented his identity to Canadian officials and was involved in serious criminality, including possession of a prohibited weapon, forgery and fraud.

Chhina was removed from Canada in September, 2017 but his legal case carried on, to determine whether the current detention regime is constitutional.

He had argued his charter rights to liberty and freedom from arbitrary detention were violated.

Human rights groups praise ruling

The ruling focused on the legal principle of habeas corpus, which allows someone in custody to go before a judge to challenge a detention. The ruling sets aside an exception that compelled migrants without Canadian citizenship to challenge immigration detention only through immigration tribunals or a federal judicial review.

Human rights groups and refugee advocates welcomed the decision.

Amnesty International said Canada has an international legal obligation to guarantee immigration detainees are able to exercise the right to a Superior Court hearing.

"The right to liberty is a fundamental human right. This decision vindicates immigration detainees who have been denied their liberty for years on end with no meaningful way to challenge that injustice and regain their freedom," said Amnesty International Canada's secretary general Alex Neve. "They can now seek justice in superior courts and have their Charter rights protected and enforced."

'Devastating impacts'

The Canadian Council for Refugees said detainees don't always get a fair hearing and incarcerating them can have serious repercussions.

"Detention often has devastating impacts, even when it is only for a short period, particularly for children, refugee claimants, trafficked persons and individuals suffering from mental health issues," reads a statement.

Swathi Sekhar, lawyer for the advocacy group End Immigration Detention Network, said the high court delivered an "important tool" for migrants to challenge their detentions. In a habeas corpus application, the onus is on the government to prove the detention is lawful, but in a detention review the onus is usually on the migrant to prove they should be released.

"This is one more tool, but more importantly this is one more large step on the road to the abolition of immigration detention," she said.

Risks for LGBT migrants

There were 11 interveners in the case.

One of them, Egale Canada, said migrants often suffer homophobic violence, while transgender migrants are often detained in facilities that don't align with their gender identities.

"LGBT people who are detained for immigration purposes face life-threatening conditions and, prior to this ruling, there was no tangible way to challenge these conditions under the current system," said Egale's executive director Helen Kennedy.

The ruling may not affect a large number of detainees. According to the recent statistics, just 122 migrants were detained for longer than 99 days over the last quarter.

The decision comes as the federal government takes steps to improve the system in response to sharp criticism of harsh detention conditions and policies.

Scott Bardsley, a spokesman for Public Safety Minister Ralph Goodale, said the government has made improvements to infrastructure and mental and medical health services, while expanding alternatives to detention and the use of provincial jails and reducing the number of minors in detention.

The recently tabled Bill C-98 would create an expanded, independent oversight body to review the Canada Border Services Agency. Bardsley said the bill will allow migrants to file complaints before that body about detentions and the conduct of CBSA employees.