How Understanding This Legal Term Can Help You Avoid Immigration Detention
By: Macdonald Scott
I am a licensed immigration consultant with Carranza LLP, a multiethnic lovely law firm. I have been honoured to provide legal support to many of the people whose cases are discussed below. I am also a member of No One Is Illegal (NOII) and the End Immigration Detention Network (EIDN). NOII is a migrant justice group, EIDN is a group of detainees, ex-detainees and supporters working to end immigration detention.
What the heck is Habeas Corpus?
A writ of Habeas Corpus (which means to “produce the body”) is a court order demanding that a public official (such as a warden) deliver an imprisoned individual to the court and show a valid reason for that person’s detention.
What does it have to do with immigration detention?
So in the “olde” days (that’s how they spelled it back then) in England (back even before the Magna Carta, so before 1215), the government and lords often detained people without any notice to their families or communities and without showing justification for the detention. Habeas became a legal instrument whereby the state or lord had to produce the person (or their body) and justify why they were detained.
In the landmark case Chaudhary v Canada Ont. CA 2015 we were able to get the courts to acknowledge that this right should be extended to migrants without status in detention. This was the case of Amina Chaudhary, a mother of three disabled children, who is free right now and taking care of her sick spouse.
Ok, so what does it mean to file a Habeas?
Filing a “Habeas” means that the onus is put on the government to prove that the actual detention is lawful. This is different than most cases, where the onus is on the detainee to show “clear and compelling reasons” why they should be released.
How does immigration detention work?
What is immigration detention?
It’s detaining people without full immigration status, or who are having their status revoked (including permanent residents) to make sure that Canada can remove them. It is separate from deciding if they should be removed but is a tool to make sure they cooperate with removal efforts. Let’s look at how it works in brief.
Why are people detained?
As above, for removal. In theory, it is also because of the following: The person is considered a flight risk (they won’t show up for removal), they are a danger to the public (criminal record anywhere, resistance on arrest) or immigration enforcement needs to hold the person to identify them.
Who is detained?
In reality, people detained are mostly black, the others are almost all brown. Women are detained who fought back against their spouse’s abuse. I had a black client who does hip-hop work with at-risk youth. Some transit cops stopped him for smoking on the bus platform, and he ended up getting detained because he swore when immigration enforcement arrested him.
How can people challenge their detention?
After 48 hours of detention, a detainee is given a detention review. At this review, a board member (pseudo-judge) will decide if they are a flight risk, danger to the public, and/or need to be detained to prove their identity. The board member will also look (very briefly) at how long the detainee will be detained (i.e when removal might occur), whether there is an alternative to detention (i.e. Someone can post bail and make sure they show up for removal), community connections, and whether the person is cooperating with their removal.
After this, the person detained has a detention review 7 days later and then every 28 days. BUT at these reviews, normally the pressure is on the person detained to prove that they should be released. This gets harder and harder for each hearing. As well, though the length of detention ought to be considered, it is only one small factor to be considered.
In many ways, beyond the fact that black people and brown people are specifically targeted, this is similar to the criminal bail system. Detention in the criminal justice system is used to pressure people into pleading guilty to get out of jail. Immigration detention is used as a way to pressure migrants into agreeing to their removal.
What is the political agenda?
Canada has a long history of excluding certain people from helping settle stolen indigenous lands, including People of Colour, Black people, LGBTIQA+ people, single women, disabled people. Immigration detention (even under the very handsome Mr.Trudeau) continues to be a tool for excluding those our system either prefers would not come in the first place, or would not be compliant workers with or without status.
How does Habeas change things?
Until Chaudhary, Habeas was not allowed for detained migrants. While it may not be as effective as organizing to get rid of detention of migrants (or jails in total), it is a tool that our people can use to get free. It also seems to upset the state given that they have committed considerable resources to try and stop it. Recently the government attempted to challenge the right to Habeas for migrant detainees in the Supreme Court of Canada. EIDN was an intervenor and on May 10th, 2019, the Supreme Court ruled in favour of migrants having access to the Habeas!!
Chaudhary was a decision by the Ontario Court of Appeal. Historically immigrant detainees could not file a Habeas either in the Federal Courts, since the Federal Courts Act does not allow it, or in the provincial courts. However, the Supreme Court Judgment in a case where a man held in federal prison was allowed to challenge his transfer to a different prison by way of Habeas, opened the door for people to challenge federal detentions by way of Habeas. Chaudhary then filed for a Habeas in the Ontario Superior Court where it was turned down. We then appealed it to the Ontario Court of Appeal which granted that a Habeas could and should be allowed to be heard in migrant detention matters as it was more advantageous or equally advantageous to the detention review process (and subsequent federal court review). Recently the Alberta Court of Appeal agreed in the Chhina case which the government appealed to the Supreme Court, it is being heard in November and EIDN is attempting to intervene.
How does one file a Habeas?
Get a lawyer!
One should hire counsel. Organizations like NOII can help find a good lawyer who will take legal aid. If you or the person you are working with wants to do it on their own, it can be done (and has been done successfully before) and a lawyer can apply to be an amicus – a friend of the court – and help out without representing the detainee.
What will happen?
First a Notice is filed. Then a record must be made which includes all the evidence. This record must be entered as an affidavit which is a sworn statement. After this, a factum must be completed which is the document that makes the legal arguments based on the facts. Then there is a hearing. This all happens at the Superior Court nearest to the place where the person is detained. If the detainee loses, then the appeal goes to the Ontario Court of Appeal.
The Struggle – how did it happen?
In 2013, 191 detainees went on hunger strike, the largest migrant hunger strike in Canadian history. Activists in the prisoner rights/prison abolitionist movement and migrant justice movement joined together to support them. The activists first focused on conditions of detention but the detainees said, “no, what we want is to be released after 90 days if they can’t deport us.” The movement went forward and EIDN was formed. EIDN held demonstrations at jails (with fireworks, the guards were very upset), press conferences, filing paperwork with the United Nations, assisting lawyers doing court work.
What has happened since?
The number of detainees has dropped dramatically, the Toronto Holding Centre used to be full (around 110) and now holds on average 60 detainees. Provincial prisons across Canada held 400 or more, they now have about 150. The releases to Toronto Bail Program (a non-governmental program that supervises released detainees) tripled last year. Children are rarely detained now, and fewer detainees are held in Provincial prisons (maximum security jails). A recent audit of the detention review system tore into the system recommending heavy and deep changes.
Why go forward?
Our lovely Prime Minister has decided to expand the immigration holding centers in Laval, Quebec and Surrey, BC. Once these are expanded they will be filled. Though they are minimum security, they are still jails. Immigration detention is not going away, the liberals have just put a smiley face on it. Families will still be separated, people will still be jailed.
What do we do next?
Support No One Is Illegal’s ongoing struggle to end immigration detention nooneisillegal.org, find local detained migrants, visit them, ask them what they need (talk to NOII first to find out good sustainable ways to do this), support your local migrant justice organization.
Tear down walls, build bridges.